Games v. Games
| Decision Date | 17 November 1931 |
| Docket Number | 7020. |
| Citation | 161 S.E. 560,111 W.Va. 327 |
| Parties | GAMES v. GAMES. |
| Court | West Virginia Supreme Court |
Submitted November 3, 1931.
Syllabus by the Court.
Primarily "alimony" is judicial allowance out of husband's earnings or income for support and maintenance of wife.
Where wife obtains divorce from bonds of matrimony, title to realty may not generally be taken from husband and vested in wife as and for alimony (Code 1931, 48-2-15, 48-2-19).
Alimony is primarily a judicial allowance out of a husband's earnings or income for the support and maintenance of his wife. Except possibly in extreme circumstances the title to the corpus of real estate may not be taken from the husband and vested in the wife as and for alimony.
Appeal from Circuit Court, Marshall County.
Suit by Nettie Games against Wilbur R. Games. From the decree rendered, the defendant appeals.
Affirmed in part and reversed in part, and cause remanded.
Everett F. Moore, of Moundsville, for appellant.
Lloyd Arnold, of Moundsville, for appellee.
The defendant (husband) appeals from a decree of the circuit court of Marshall county awarding the plaintiff a divorce from the defendant from the bond of matrimony on the ground of adultery, giving her the custody of the children, allowing her $50.00 per month alimony, requiring the defendant to convey to the plaintiff certain of his real estate in fee simple, and appointing a special commissioner of the court to convey the title to said property upon defendant's failure to do so.
Evidence in the record of noisome and disgusting occurrences will not be discussed in this opinion. Such matters have no proper place in the published opinions of a court. Upon careful consideration of all the circumstances of the case, we are of opinion that the trial court was warranted in adjudging that the defendant was guilty of adultery, and that the plaintiff did not condone his offense. The awarding of the custody of the children to the plaintiff and the allowance to her of alimony followed as incidents of the principal finding. We leave those matters in repose.
However an interesting legal question arises on the right of the trial court to require the defendant to convey in fee to the plaintiff certain of his real estate, and upon his default directing a special commissioner to make the conveyance. There is neither statute nor decision of this jurisdiction which is authority for such requirement.
The old statute (Code 1923, c. 64, § 11), in force for many years provided that a court upon decreeing a divorce, or dissolution of a marriage, might "make such further decree as it shall deem expedient, concerning the estate and maintenance of the parties. ***" (Italics ours.) In Goff v. Goff, 60 W.Va. 9, 53 S.E 769, 9 Ann. Cas. 1083, it was recognized that the above provision of the statute was sufficiently broad to warrant a court in declaring alimony to be a specific lien on real estate. In Reynolds v. Reynolds, 68 W.Va. 15, 69 S.E. 381, 385, Ann. Cas. 1912A, 889, there appears this holding: "The words 'concerning the estate' of the parties, are evidently meant to give the court authority to protect each party in the possession and enjoyment of his or her respective estate, subject to such alimony as may be decreed, and not to authorize the transfer of the legal title to the land by way of alimony." In that decision it is noted, in effect, however, that there might arise extreme circumstances which would warrant a court of equity in requiring transfer of title. What might constitute such extreme circumstances is not clear. At any rate, nothin g of that sort exists in the instant case. The more recent case of Philips v. Philips, 106 W.Va. 105 144 S.E. 875, while not making specific reference to either of the two foregoing cases, is in nowise inconsistent with them. The essence of the holding in the Philips Case is that upon granting a divorce, the court may, under authority of section 11, chapter 64, Code 1923, settle the claims of the respective parties in and to the property acquired by them during the marriage. This is far short of saying that upon decree of divorce the husband may be required to convey real estate to the wife as and for...
To continue reading
Request your trial