150 S.E. 231 | W. Va. | 1929
This is a suit in which the plaintiff was awarded a temporary divorce and the sum of $75.00 a month for her maintenance until the further order of the court. The defendant appeals on the ground that the evidence does not justify the decree.
The parties were married in April, 1928, and separated the following July. The evidence of the one as to what led up to the separation is entirely at variance with the evidence of the other. The brief of counsel for defendant relies almost exclusively upon the evidence in favor of his client. But as the lower court has determined the controversy in favor of the plaintiff, we cannot disturb the finding, if there is evidence to support it, unless the decree is plainly erroneous.Walton v. Pritt,
The defendant assumes the position that plaintiff deserted him on July 19th. If his conduct toward her was as unreasonable and oppressive as she describes, then the law will presume that he intended to cause her to leave him: it will not permit him to take advantage of his own wrong; it will not construe her departure on the 19th as legal desertion. Horkheimer v.Horkheimer,
The defendant protests the sum imposed for the support of the plaintiff, on the ground that his property and his income do not justify any such amount. If we consider his evidence alone on this subject, it would seem that his protest is well taken. But the trial judge announced before the evidence was closed that he preferred to conclude the case on its merits at that time, reserving the right to go into the property rights of the parties thereafter. Record, p. 104. The decree of divorce expressly provided that the question of property rights would be taken up and disposed of at a later date. Because of the ruling of the court, it is a fair inference that the plaintiff postponed the completion of her evidence as to the property. Moreover, the allowance was temporary. *75 We are, therefore, of opinion that the defendant should have moved the lower court to conclude the evidence on that subject and to modify its decree as to the award before making it a point of error here.
The decree of the lower court is accordingly affirmed.
Affirmed.