Hawkins v. Hawkins, Record No. 3298.
| Citation | 187 Va. 595 |
| Decision Date | 26 April 1948 |
| Docket Number | Record No. 3298. |
| Court | Virginia Supreme Court |
| Parties | GEORGE G. HAWKINS v. DOROTHY W. HAWKINS. |
Present, Gregory, Spratley, Buchanan, Staples and Miller, JJ.
1. ALIMONY - Discretion of Court. — The allotment of alimony is within the discretion of the court. It is not an arbitrary but a judicial discretion, to be exercised in reference to established principles of law relating to the subject, and upon an equitable view of all the circumstances of the particular case.
2. ALIMONY — Determined by Ability to Earn, Not Actual Earnings. — In determining the propriety of allowing alimony and in fixing its amount, there must be taken into consideration, along with all of the other circumstances of the particular case, the needs of the wife and the ability of the husband to pay — not necessarily the amount of his actual earnings, but his ability to earn.
3. HUSBAND AND WIFE — Duty of Husband to Support. — During the marital status, it is the duty of the husband to provide adequate support and maintenance for his wife and children according to the station in life in which he has placed them, consistent with is financial ability.
4. ALIMONY — Basis — Duty of Husband to Support. — The law imposes upon a derelict husband and father the duty of maintaining his former wife and his children in the same manner to which he has accustomed them, providing his financial status warrants it.
5. ALIMONY — Amount — Case at Bar. — In the instant case, a suit for divorce and alimony, the court decreed that defendant should pay fifty dollars a month as alimony and sixty dollars a month for the support of his infant daughter who was living with his former wife. Defendant was a plumber employed at one dollar and seventy-five cents an hour or seventy dollars a week. Besides the infant daughter there was a son by the marriage.
Held: That one hundred and ten dollars a month was not an excessive amount under the circumstances for defendant to pay toward assisting the complainant in the task of supporting and educating their daughter, and maintaining a home for herself and the two children.
6. ALIMONY — Amount — Consideration of Delinquency of Husband. — Where the delinquency of the husband has been established and the wife has been compelled to seek a divorce on account of his misconduct, while alimony is not to be used as a method of punishment, the court will not seek to find how light the burden may possibly be made, but what, under all the circumstances, will be a fair and just allotment.
Appeal from a decree of the Circuit Court of Henrico county. Hon. Julien Gunn, judge presiding.
The opinion states the case.
Charles W. Crowder, for the appellant.
George E. Haw, for the appellee.
The complaint on this appeal is that the trial court abused its discretion in granting any alimony to the complainant in a divorce suit, and in the amount granted.
The suit was brought by Mrs. Hawkins against her husband in 1944 for a divorce a mensa on the grounds of cruelty and desertion, for alimony for herself and support for their two children, and for attorney's fees.
The parties were married in 1925 and have two children — a son and a daughter, who were 16 and 13 years of age respectively when the suit was brought.
A decree was entered November 23, 1944, requiring the defendant to pay to complainant $23 a week for the support of the children, and in addition to furnish necessary wearing apparel for them.
The defendant filed an answer in January, 1945, admitting the formal allegations of the bill and asking for proof of the other material allegations. Nothing further was done until the complainant filed an amended bill in August, 1946, asking for an absolute divorce on the ground that the desertion, of which she had complained, had continued for more than two years.
The evidence consisted of the depositions of the complainant and her father and of the defendant. The complainant's evidence, which the defendant did not deny, established that for a number of years prior to the bringing of the suit the defendant had been drinking to excess, had frequently cursed and abused the complainant, had assaulted and choked her on more than one occasion; that he had threatened her and she was afraid of him and was forced to have him put under a peace bond. After that trial he deserted her on July 14, 1944, and they have not lived together since.
By decree of February 17, 1947, the chancellor granted to the complainant a divorce from the bonds of matrimony and ordered that, until further order of the court, the defendant pay to the complainant $50 a month as alimony and $60 a month for the support of the daughter, as well as a fee of $125 to complainant's counsel. This decree was set aside ten days later, on defendant's motion, but re-entered on April 2, 1947, without change, except to provide that the monthly payments should begin on March 1, 1947. The only part of this decree objected to is the provision for alimony of $50 a month to the complainant.
The guiding rule was stated in the first divorce case ever to reach this court and it has not been changed since. That was the case of Bailey Bailey, 21 Gratt. (62 Va.) 43, decided in 1871, in which it was said:
It is like a breath of fresh air to find in that opinion that
The court regretted that that record, which spoke "volumes in favor of the morality, purity and chastity of that social life, which recognizes marriage as the very basis of the whole fabric of civilized society, and seeks to preserve its sanctity inviolable," was now broken; and concluded with the hope that such cases might be as infrequent in the future as in the past, and that amid the "whelming tide of social and political revolutions * * * one pillar at least of the social fabric may still stand firm, and * * * that marriage may in the future, as it has been in the past, be ever recognized in Virginia as an institution to be cherished by law and sanctified by religion, as one upon which alone the happiness and purity of social and...
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