Henrie v. Henrie

Decision Date22 October 1912
CourtWest Virginia Supreme Court

Submitted February 21, 1911.

Rehearing Denied Jan. 6, 1913.

Syllabus by the Court.

In decreeing a divorce a mensa et thoro, and for the payment of alimony, the chancellor has the power to reserve the right to make such changes in the amount, as the changed circumstances of the parties and the principles of justice may require.

The right to fix the amount of alimony rests in the sound discretion of the chancellor, and this court will not disturb his judgment, unless he has grossly abused such discretion.

In determining the amount of alimony, the property and income of the husband, his ability to earn money, and the needs and social standing of the wife should be considered.

A decree dismissing the wife's petition praying for an increase of alimony, without stating the reason why it was dismissed, is not an adjudication upon the right reserved in a former decree to make changes in the amount.

It is error in decreeing a divorce a mensa et thoro to decree payment of alimony "for and during the wife's life." It should be during their joint lives, or until reconciliation. But, if such is the only error appearing this court will correct the decree, and will affirm it as thus modified.

Appeal from Circuit Court, Wood County.

Suit in equity by Virginia W. Henrie against Morgan Henrie. From a decree increasing the alimony allowed by the original decree of divorce, defendant appeals. Modified.

Robinson and Brannon, JJ., dissenting in part.

McCluer & McCluer, of Parkersburg, for appellant.

C. D Merrick, of Parkersburg, for appellee.


On the 5th of December, 1887, at her suit, Virginia W. Henrie was granted a divorce from bed and board from her husband, Morgan Henrie, and $100 a year alimony, payable in semiannual installments. The decree expressly reserved to the court the right to modify the decree at any future time, in accordance with equity and justice, on the application of either party and upon proper showing.

At January rules, 1909, plaintiff filed her petition, alleging that, on account of her advance in years and her consequent inability to earn money by the use of her needle, as she once did, the allowance of $100 a year was insufficient for her maintenance. The petition further alleges that, since the decree for alimony was made, her husband, Morgan Henrie, had become more prosperous, possessed more property, and had a greater income than he had when the decree of separation was granted, and that he was therefore able to pay more toward her support than $100 a year. The cause was heard upon petition, demurrer, and answer thereto, and depositions, and a decree made increasing the alimony from $100 to $400 per annum "for and during her natural life," and making it payable in monthly installments of $33 1/3 each on the 15th of each month, beginning on the 15th of March, 1910. From that decree the husband has appealed.

Relying upon Cariens v. Cariens, 50 W.Va. 113, 40 S.E. 335 55 L. R. A. 930, which holds that the amount of alimony allowed by a decree of divorce a mensa et thoro is res judicata, counsel for defendant insist that the court was powerless to increase the alimony, and that, therefore, the overruling of the demurrer to the petition was error. But that case does not control the decision in this case, for the reason, if for no other, that there was no right reserved by the decree in that case, as there is in this, to make changes in the amount of alimony. By such reservation in its decree the court retained control over its decree. The case was, therefore, still a pending case, for the purpose of permitting such change in the amount as future conditions and the changed circumstances of the parties might show to be necessary to meet the ends of justice and equity.

The statutes of many states expressly reserve such right, both in cases of absolute divorce, and in cases of divorce from bed and board; and, when the right is reserved by statute, the court need not reserve such right in its decree. Our statute (section 11, c. 64, Code 1906) does not expressly authorize the court to retain such control over its decree. But the majority of the court are of the opinion that such power is implied in the language of section 11, empowering the court to "make such further decree as it shall deem expedient, concerning the estate and maintenance of the parties, or either of them," etc. I do not think the statute should be given that interpretation, because it contemplates the making of such decree for maintenance at the time the divorce is granted. But, independent of statute, there is no doubt that the court has inherent power to reserve such control over its decree. The law has been so determined by the courts of many states, independent of statutes. Purcell v. Purcell, 4 Hen. & M. (Va.) 507; Lockridge v. Lockridge, 3 Dana (Ky.) 28, 28 Am. Dec. 52; Lockridge v. Lockridge, 2 B. Mon. (Ky.) 258; Beck v. Beck, 43 N. J. Eq. 668, 14 A. 812; Galusha v. Galusha, 138 N.Y. 272, 33 N.E. 1062. In his very excellent work on Divorce and Separation, Mr. Nelson, in Vol. 2, § 933a, says: "It is clear that such a decree of divorce may reserve the allowance for future consideration, and in such case the decree is not an adjudication of a matter which by its very terms is left open for determination." Mr. Bishop also says: "There is no just ground to doubt the efficacy of such a reservation, and in prudence it ought to be in states wherein the right in the absence of the reservation is unsettled or is denied." 2 Bishop on Mar. & Div. § 875. The courts of some states hold that the right to make such changes in the amount of alimony, as the altered conditions of the parties may show to be equitable and necessary, is an inherent power in the court, and that no reservation in the former decree is necessary to authorize it. 2 Nelson, Div. & Sep. §§ 933a, 934; Olney v. Watts, 43 Ohio St. 499, 3 N.E. 354; Lockridge v. Lockridge, 2 B. Mon. (Ky.) 258; Wheeler v. Wheeler, 18 Ill.

39. But we are not called upon to decide whether or not that is the law of this state, and we do not decide that question. But we suggest that it is a safe and proper practice to reserve the power by the decree. In cases of separation from bed and board much stronger reasons exist for permitting changes in the amount of alimony than exist in cases of divorce a vinculo. In the former class of cases the marital relation continues, and the duty rests upon the husband, if he is the party in fault, to support his wife in proportion to his ability, and in accordance with her needs and social standing; and both are still bound to keep the conjugal vows. Cariens v. Cariens, supra; 1 Nelson, Div. & Sep. § 134; 2 Bishop, Mar. & Div. § 1672.

But, to justify an increase in the amount of alimony, there must be a corresponding increase in the husband's financial ability, since the original decree, or such an alteration in the wife's situation, as will render her need of help more imperative. The amount could not be changed, if the conditions existing at the date of the decree remained the same.

The petition avers that it is tendered pursuant to the right reserved by the decree; and also avers facts which, if true show that her husband is in better financial circumstances, and that she is in greater need of assistance, than when the separation was decreed and the alimony determined. The allegations show sufficient cause for relief, and the demurrer to the petition was properly overruled. It appears that within the last six or eight years petroleum oil was discovered in, and is now being produced from, defendant's land, and that he has received considerable income in the way of royalties, the income for the year next previous to the giving of his deposition being $404.27; that he has accumulated some money, and owns $3,000 of bank stock, from $2,000 of which he derives an income of about $120 a year; that he has money loaned out, but how much does not appear; that he raises cattle on his farm for sale; that his son, James Henrie, and his family lived with him on his farm, and that they all derived their support mainly from the products of the farm; that the consideration for their support was the services of his son's wife in keeping house for him, and in looking after his comfort; that he pays $80 annually in taxes; and that he has the same amount of land now that he had in 1887, which is about 260 acres. These facts show that defendant's financial ability has materially increased since the decree of separation, and that he is now in a fairly prosperous condition. Surely a man who pays an annual tax of $80 on lands which produce oil, from which more than $400 a year royalty is derived, in addition to farm products, and who owns $3,000 of bank stock, and has money to lend, ought to be able to contribute more than $100 per year to the support of his wife. True, the parties have both grown old. The husband is now past 80, and the wife is only about 10 years younger. It is also true that a man of that age could scarcely be expected to make even his own support solely by his own labor. But,...

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