130 Va. 557 | Va. | 1921
delivered the opinion of the court.
This is an appeal on the part of George Twohy from a decree of the Circuit Court of the city of Norfolk, divorcing him a mensa et thoro, from his wife, Florence M. Twohy, awarding her alimony and counsel fees and the custody of the three infant children. This decree also provides that the husband may see the children at any reasonable time and place during the school term, and shall “have the right to have the custody of the children during the vacation period of each year for not longer than six weeks.” The permanent alimony of the wife is fixed at $3,600 a year, and an allowance of a like amount is made for the support, maintenance and education of the three infant children of the union. Counsel fees were fixed at $2,500. These allowances are large, but the defendant is a man of considerable means, apart from his own earning power. The final decree dismisses the suit, with a provision for reinstatement for such further orders as may be thereafter deemed necessary. There are other provisions contained in said decree, but they are not needful to be recited. An appeal from this decree was taken by the defendant.
The deposition of the wife supports, in great detail and at considerable length, all the charges of her bill. Practically all of the foregoing charges of gross insult, violence, continued drunkenness, protracted neglect and ill treatment generally, are denied by the husband in his answer. These denials are repeated under oath on the stand. The husband admits that he was not at all times without fault, but these faults and breaches of conjugal duty as he relates them would not be sufficient to support a decree for a divorce. However, there are other witnesses than the husband and wife. The testimony of the latter is to a degree corroborated. While we regard the testimony of the wife as a somewhat highly colored recital of her marital troubles, and in many of its most grievous charges lacking the corroboration required by law, we gather on the whole from the record that the husband failed in his duty, and while he has not been drunk as often and to the degree alleged by the wife, his habits of drink during his marital life, and his conduct while drunk, have been such as to destroy his wife’s affection and render her lot grievous to be borne.
This appears to be one of those cases referred to by Judge Staples in Latham v. Latham, 71 Va. (30 Gratt.)
There is proof in this record of drunken violence inducing fear on the part of the wife, and causing her to leave home, and of unbecoming language and coarse and vulgar words. Such proof is contained in the testimony of the corroborating witnesses.
The assignments of error on the part of the appellant are:
I. That the evidence does not establish cruelty and entitle the plaintiff to a divorce;
II. That the allowances to the wife for herself and children are excessive;
III. That an excessive amount is allowed for counsel fees.
While, as we have stated, the entirety of the wife’s charges is far from being supported, and corroboration is lacking in respect of many specific acts testified to in great detail on her part, yet there is a considerable amount of testimony afforded by witnesses other than the plaintiff and defendant. The record is not all affirmation and denial on their part, and there are some damaging admissions made by the husband. Lizzie Myrick, a sister of the wife, testifies that when the parties were first married the husband would not get home until eight at night, though his. office hours ended at three. Her sister asked the witness to. stay with her at times on these occasions. When the defendant reached home, he would be “under the influence of whiskey, and cross and crabbed.” She describes a scene on the front porch at Stockley Gardens, when defendant
“Q. Did he ever undertake to lock Mrs. Twohy out of the house when she went to a party?
“A. Yes, sir. They were invited out to play cards. He never would go anywhere with her. She went anyway. He would go from one room to another, just like a madman, until she got back. When she got back the doors were all locked and she was locked out.”
On the occasion when Mrs. Twohy left home with the children, the witness was there. After describing the preliminary occurrences, the witness says: “My sister asked him quietly to go out of the room, so that they (t. e., she and the children) could get quiet. He said: T don’t care a damn about you.’ He shook his fist at me, and said: ‘Your sister, I don’t care a damn about her, and have not cared a damn about her in three years.’ He looked like he was wild. Really and truly he scared me.” On this occasion witness says the husband was drunk. When he went downstairs, his wife locked the door. Returning he broke in the panel of the door. The wife then left with the children, the latter in their night clothes, and went across the street to a neighbor’s home where they spent the night. The husband went elsewhere in an automobile with friends.
The following question was asked and answered:
“Q. You all were afraid to stay in the house with him?
“A. Yes, sir. He was just like a wild man.”
Mrs. Maria Thom testifies that about nine o’clock on the night- that Mrs. Twohy finally left her husband, her doorbell rang, and opening the door she found Mrs. Twohy and the three children, the latter in their night clothes and barefooted. Next day the witness went to Mr. Twohy’s and found the panel broken out of the door, and, to use her language, “every piece of looking glass was smashed into a thousand pieces, and bottles scattered around the floor, and confusion generally.”
There is no question from the evidence in this case that the husband caused the wife much mental anguish during many weary years, by his gross neglect, wanton humiliation and insulting language.
In the matter of permanent alimony, Mr. Minor says (1 Min. Inst. 309) : “Ordinarily, it is said, the wife ought to be allowed for permanent alimony from one third to one-half of the joint income, two-fifths being no uncommon proportion.” See also Bailey v. Bailey, 21 Gratt. (62 Va.) 43; Francis v. Francis, 31 Gratt. (72 Va.) 285, 289; Harris v. Harris, 31 Gratt. (72 Va.) p. 16 el seq.; and Carr v. Carr, 22 Gratt. (62 Va.) 168.
The husband in this case is the delinquent; nevertheless, he will derive from the profits of his estate (which is estimated at something like $300,000) an amount which will exceed one-third of the net income. This will be for his exclusive personal use. To this fixed income he can add any sums proceeding from, his own industry. Moreover, if conditions change at any time, and a readjustment of the allowances fixed by the court should appear to be just and proper, such readjustment may be secured upon application to the court. It does not appear that the courjt erred in respect of the above allowances.
The trial court seems to have had the foregoing considerations in mind in this case, and his initial allowance for counsel fees was merely nominal. In the final decree, after the merits of the controversy had been settled, and the husband ascertained to be in fault, the sum of $2,500 was allowed. This was a liberal allowance under the circumstances, but we cannot say that there is such error in same that we will undertake to reduce the amount thus awarded. This case is a simple one, presents no complications, and requires the exercise of no great skill or industry on the part of counsel bringing the suit. In making allowances for legal services in these cases, the courts should have in mind the amount of the estate, but in far greater degree such allowances should rest upon the difficulties of the litigation and
We find no error in the decree complained of, and the same is affirmed.
Affirmed.
(Burks, J., was of opinion that the allowances for alimony and counsel fees were excessive.)