Boyden v. Boyden

• Decision Date: 01 November 1929
• Docket Number: No. 6726.,6726.
• Citation: 147 A. 621
• Parties: BOYDEN v. BOYDEN.
• Court: Rhode Island Supreme Court

147 A. 621

BOYDEN

v. BOYDEN.

No. 6726.

Supreme Court of Rhode Island.

Nov. 1, 1929.

Appeals and Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Presiding Justice, and Herbert L. Carpenter, Judge.

Divorce suit by Annie S. G. Boyden against George E. Boyden. Petitioner was granted a divorce, and, from a decree awarding alimony, respondent appeals and also files bill of exceptions. After the decree of alimony was entered, a motion for stay of execution was granted, and petitioner appealed and filed exceptions. Decree reversed on respondent's appeal, petitioner's exceptions overruled, and her appeal dismissed.

Walter I. Sundlun and Baker & Spicer, all of Providence, for petitioner.

Alfred G. Chaffee and Arthur H. Feiner, both of Providence, for respondent.

BARROWS, J. Petitioner was granted a divorce from respondent. Custody of a 2 year old child was awarded to her. The question of alimony was left for later consideration. At a subsequent hearing on a prayer for alimony, testimony was taken, and it appeared that respondent, aged 25, and petitioner had been married about four years and had lived at the rate of more than $200 per week, and that respondent's relatives had paid the bills voluntarily; respondent himself had earned $25 per week as a bond salesman, and no testimony was offered that he was capable of earning more except the opinion of the wife. This had no evidential value. At the time of the hearing he had no property, although he was living at a private hotel and operating one or more motorcars. His expenses were paid by his relatives. His income in excess of $25 per week was dependent entirely on what his father and grandfather "had a mind to give him." Respondent lived with his father and paid nothing for his board or room. He was in the habit of not working one or two days a month. The court said that "it would seem probable that if the respondent exerted himself and worked in accordance with his ability, his income would be larger." It found the matter "perplexing," and ordered $50 per week paid, saying "whatever amount is ordered would evidently if paid come from his father or grandfather as respondent has no property of his own." Following this decision, the decree awarding $50 per week as alimony and for the support of the child was entered, and from this decree respondent appealed, alleging that it was against the law and the evidence. He also filed a bill of exceptions.

It has been settled that an appeal and not a bill of exceptions is the proper procedure by which to ask this court to review a decree awarding alimony. Harvey v. Harvey, 45 R. I. 383, 123 A. 82; Ward v. Ward, 48 R. I. 60, 135 A. 241. Hence respondent's bill of exceptions is overruled.

The question raised by respondent's appeal is as to the sufficiency of the evidence to support the decree. Little can be found in the evidence to warrant an inference that respondent honestly desires to support his wife and child. His indifference thereto is marked. Even so, however, certain basic principles must be observed in fixing compulsory alimony. Justice Blodgett recognized that the order of $50 per week would require for its satisfaction more money than respondent was earning, and that, if paid, it would have to be from moneys advanced to him by relatives. No evidence showed that respondent could continue to borrow from them or that they would continue to give money to him, and the conclusion is inevitable that the order was made on the assumption that respondent's relatives for the salve of the wife or child or to keep respondent out of jail would continue to make gifts to enable respondent to pay the alimony awarded. However laudable the court's intention to provide for the wife and child conjecture that a respondent's relatives will help him or the court's belief that they should is not evidence upon which to fix alimony.

Alimony and allowance should be ordered upon evidence that a husband himself has means of compliance or a capacity to acquire them if he makes reasonable efforts. The needs and circumstances' of the wife and child, however dire, do not furnish a suitable test of the amount the husband should pay, though the court may sympathize with the wife or doubt the husband's honest desire to support his family. The court must be satisfied that the husband can comply with the decree.

As an aid to ascertainment of the husband's earning capacity, not only what he is actually earning, but his previous earnings, may be of evidential value. Sometimes after a divorce there may not be sufficient earnings or property to meet the needs of all and hardship may result. In the case now before us, if the husband does not suffer hardship, it is because he is an object of charity. The testimony indicates lack of capacity to support his family even modestly.

The extravagant way in which these parties lived during their marriage evidently was in part the basis of petitioner's testimony as to her needs after the divorce. Doubtless tastes and habits were acquired which seemed to petitioner to demand the $125 per week which she requested or even the $50 which she received, but such tastes could not furnish a suitable basis for the court to order respondent to pay money which he was not earning and which there was no evidence that he could obtain. Respondent's relatives owed him no legal obligation to supply him with money. Indeed, if respondent's habits are as extravagant as petitioner contends there would seem to be excellent reason why his relatives should refuse to further...