Branch v. Branch

• Decision Date: 18 March 1926
• Citation: 132 S.E. 303
• Parties: BRANCH. v. BRANCH.
• Court: Virginia Supreme Court

132 S.E. 303

BRANCH.

v.BRANCH.

Supreme Court of Appeals of Virginia. Richmond.

March 18, 1926.

Error to Circuit Court, Buckingham County.

Suit by Mrs. Fletcher Branch against Fletcher Branch. Defendant was adjudged to be in contempt of court for failing to pay alimony, and was ordered to be confined in jail until alimony is paid, and he brings error. Affirmed.

John D. Easley, of Lynchburg, for plaintiff in error.

Hubard & Boatwright, of Buckingham, for defendant in error.

BURKS, J. Fletcher Branch was married February 18, 1920. Two children were born of the marriage, one on March 1, 1920, and the other on May 4, 1922. In 1922 he struck his wife, drove her from his home, and told her never to return. Since that time she has lived separate and apart from him, and has had custody of the two children. In the fall of 1922 he was brought before the circuit court of Buckingham county for desertion and nonsupport of his wife and children, and compelled to enter into bond with surety to pay $200 per annum towards such support. This sum was paid. In 1923 he was required by said court to enter into a similar bond for support for another year. In 1924 the wife sued for divorce and alimony, and at the October term, 1924, of the circuit court of Buckingham county the divorce was granted, and a decree for alimony granted for $200 per year, payable monthly. He paid nothing on the decree for alimony, and in February, 1925, a rule was issued against him, returnable to the March term, to show cause "why he should not be dealt with for his contempt." Hearing on the rule was continued until the May term of the court, when the judgment now complained of was entered, directing that the said Fletcher Branch be "confined in jail for 15 days or as long thereafter until the said alimony and the costs of these proceedings be paid."

At the hearing on the rule, the defendant filed no answer to the rule, but moved the court to reduce the amount of yearly alimony, and in support of his motion offered the following testimony:

"Fletcher B. Branch, the defendant, testified that he had been totally unable to pay the sum awarded the plaintiff by said decree in the rule mentioned, and had not at any time been able to pay the same or any part thereof; that he owned no property; that he knew no trade, business, or craft; that he had done nothing but farm all of his life; that he lived with his mother, who was about 80 years of age, on a very poor farm of about 60 acres; that said farm had been owned by his father, who had died intestate, leaving surviving his widow, the mother of witness, and eight children; that his mother had no one else to live with her; that his mother owned the teams, tools, and farming implements, and got two-thirds of what was raised on said 60-acre farm; that in addition to working said farm of 60 acres he rented some James river low ground, and paid as rent therefor one-third of the crop to the landowner and one-third to his mother for the use of her team and farming implements, and got one-third of the crop for his labor; that during the year of 1924 high water destroyed all of his low ground crops, and that he raised about 20 barrels of corn on some highlands, of which he got one-third as his part, and that his part of the tobacco crop raised on his mother's farm was $98; and that the foregoing was all the crops he got during 1924; that he had tried to get other work to do, but was unable to do so; that he desired and tried to comply with the decree of the court for the payment of said sum, and that his failure to do so was due solely to his inability so to do; that he had borrowed from his friend, H. D. Omohundra, Jr., $200 to pay to plaintiff for her support and the support of his and plaintiff's children in October, 1923, and produced in evidence a canceled check of H. D. Omohundra, Jr., for said sum of $200, dated October 20. 1923, payable to Mrs. F. B. Branch, and marked 'For F. B. Branch' on the face of said check, and indorsed on the back of said check as follows: 'Pay to F. R. Moon & Co., Mrs. F. B. Branch'; that he had been unable to pay this loan in full, though he had repaid about $150 thereon; that he could get a job, he supposed, paying $30 or $40 per month, but produced a contract for the rental of land for the year 1925; that he was 29 years old, strong, and in good health, and physically able to work."

"H. D. Omohundra, Jr., testified that he knew the defendant well, and lived near him, and knew his financial condition; that the defendant had no property, and that he had lent the defendant. $200 to pay the latter's wife in October, 1923, as testified by defendant, and only about $150 of this loan had been repaid witness; that the farm on which defendant's mother lived was very poor, and the whole place worth pos-sibly $500 or $600; that defendant's low ground crop had been destroyed by high water in 1924, and that the defendant had been very hard up, though he worked hard and got jobs at hauling and other work when he could; that witness had, in addition to the loan of $200 above mentioned, made some small loans of $5 or $10 from time to time to relieve his necessitous circumstances; that farm labor was plentiful and cheap in his neighborhood, the prevailing price being $1.25 per day, and board."

In support of the rule the wife testified as follows:

"That she had received nothing from defendant since October, 1924; that she lived with her father and mother, who were poor, old, and unable to work; that her two children were 5 and 3 years old, respectively, and required her attention so that she was unable to get work for support of herself and...