Burdette v. Burdette

• Decision Date: 22 April 1930
• Docket Number: No. 6669.,6669.
• Citation: 153 S.E. 150
• Court: West Virginia Supreme Court
• Parties: BURDETTE. v. BURDETTE.

153 S.E. 150

BURDETTE.

v.BURDETTE.

No. 6669.

Supreme Court of Appeals of West Virginia.

April 22, 1930.

Syllabus by the Court.

The amount of alimony decreed will not be disturbed by this court unless the discretion in the chancellor to fix it has been grossly abused.

Syllabus by the Court.

In a decree a mensa and for the payment of monthly alimony out of the husband's income, the chancellor has the power to reserve, and ordinarily should reserve, power to make such changes in the amount as changed circumstances and justice may require.

Syllabus by the Court.

A case where such reservation in the decree should have been made.

Additional Syllabus by Editorial Staff.

[Ed. Note.—For other definitions of "Alimony, " see Words and Phrases.]

Appeal from Circuit Court, Cabell County.

Divorce suit by Margaret Burdette against J. A. Burdette. From that part of the decree relating to property rights and alimony, plaintiff appeals.

Modified and affirmed.

Simms & Staker, of Huntington, for appellant.

James H. Strickling, of Huntington, for appellee.

LIVELY, P.

Margaret Burdette sued her husband, J. A. Burdette, in domestic relations court of Cabell county, in the year 1928, for a divorce from bed and board, for alimony, and for a division of property accumulated by their joint efforts. Upon answer and evidence that court decreed her a divorce a mensa and permanent alimony of $S5 per month, but did not decree concerning the estate of the parties, and dismissed the cause from the docket. Upon appeal to the circuit court by defendant, the cause was remanded with direction to ascertain and decree the property rights of the parties and alimony in accordance with and as influenced by a division of the property if such division was had. Upon the remand of the cause, the domestic relations court re-ferred it to a commissioner who reported that plaintiff should be decreed a one-half undivided interest in the house on Ninth avenue in the city of Huntington, less $500, or in lieu thereof a lien thereon for $6,000 in discharge of her inchoate right of dower therein and inheritance thereto; and that the alimony should be $S5 a month; and that she should have all household furniture, and right of burial in the cemetery lot owned by defendant. Defendant excepted to the report, and the court decreed her a lien upon the house and lot for $4,000 in lieu of alimony and her dower and right to participate in defendant's estate, and until that lien was paid off and discharged, defendant should pay her $50 a month alimony. She was decreed the household furniture and right of burial as recommended by the commissioner's report, and costs of the suit. The circuit court refused an appeal on October 10, 1928, saying that the decree was plainly right, and plaintiff obtained this appeal. She says the trial chancellor erred: (1) In not allowing permanent alimony at $85; (2) in not decreeing her either a one-half undivided interest in the real estate or in lieu thereof a lien thereon of $6,000; and (3) in refusing to decree her an allowance of $500 to pay her attorneys their fees for prosecution of this appeal.

The commissioner reported that the real estate owned by defendant, a house and lot on Ninth avenue in the city of Huntington assessed for taxes at $9,825, were worth about $13,500. The lot has a frontage of 30 feet and runs back a distance of 200 feet on the rear of which is a garage with apartments over it, constructed in 1924. The dwelling house on the lot where the litigants live was erected about the year 1914, and cost $3,600. The lot on which it was erected cost $1,600. He reported defendant's income at $231.50 per month. The marriage was solemnized December 29, 1903. The husband became employed as a locomotive engineer, and had accumulated from his wages, in 1914, sufficient money to buy the lot and build the dwelling. The wife did the housework. He gave her a monthly allowance of $30 for her pin money out of which, and some money paid to her by her two brothers who lived with her, she had saved $1,000 which she had invested in a building and loan association. Her mother also came to live with her in the Ninth avenue property, and after the brothers came the relations between husband and wife became strained, finally ending in a cessation of marital relations, although they both occupied the same house. In May, 1928, plaintiff sued her husband for a divorce a mensa and alimony and claimed an equitable interest in the property, charging that he had been guilty of adultery, had abandoned her, and had subjected her to cruel and inhuman treatment. Upon answer and proof taken, the decree first above mentioned was entered, appealed from, re manded, more evidence taken, and the report of the commissioner filed, upon which the decree appealed from was pronounced.

The controversy has narrowed to the amount of alimony to which the wife is entitled, although she says that she should be decreed an undivided half interest in the property, irrespective of her marital fights therein or her right to alimony, on the theory that by performing her duties as a wife and housekeeper she contributed to the accumulation of money which went into the property, the legal title to which is held by the husband. Her counsel argues that marriage should be considered as a partnership, the spouses being equal partners, and therefore an equal division of the property accumulated while the partnership existed should be had upon dissolution: It will be seen by the decree that the court gave her $4,000, and secured it by a lien upon the real property, a portion of which was to reimburse her for her inchoate right of dower therein as a distributee of her husband's estate and not as a partner. We can see no special circumstances which would warrant a transfer of the property or any interest therein to her. It...