Lovegrove v. Lovegrove

• Decision Date: 18 November 1920
• Citation: 104 S.E. 804
• Court: Virginia Supreme Court
• Parties: LOVEGROVE. v. LOVEGROVE.

104 S.E. 804

LOVEGROVE.

v.LOVEGROVE.

Supreme Court of Appeals of Virginia.

Nov. 18, 1920.

Appeal from Circuit Court, Rockbridge County.

Divorce suit by A. J. Lovegrove against Ella E. Lovegrove. From that portion of the divorce decree awarding alimony, the wife appeals. Affirmed.

Hugh A. White, of Lexington, for appellant.

Wallace Ruff, of Lexington, for appellee.

PRENTIS, J. A. J. Lovegrove instituted a suit for divorce against his wife, the appellant. She filed her answer and cross-bill. A great deal of testimony was taken, and the trial court granted her a divorce a mensa et thoro from her husband, upon the ground of cruelty. While much of the briefs is taken up with undertaking to show which was most responsible for their matrimonial infelicity, neither party has appealed from the decree of divorce, and hence we shall give this question no attention.

The appellant, the wife, complains of the allowance of $30 per month alimony, and urges that this portion of the decree should be reversed, and that she should be allowed to remain with her infant children in the residence of her husband. This property consists of a dwelling house and 24 acres of land, and constitutes the only real estate which he owns. It is alleged by the appellant to be worth at least $3,500, and it is also said that he has personal property, mak ing his entire estate worth about $4,800, though the proof as to these values is hard ly satisfactory, and is controverted by the appellee. The little farm does not require all of the husband's time, and it is said that he can work at his trade as a carpenter and cooper, and as a farm hand, and earn at least $2.50 a day. At the time the decree was entered, there were eight living children, and five of them were infants; but of these five the oldest is now 21 years of age, and the next between 19 and 20. Of the other three infants, one is a boy now between 13 and 14 years old, another a boy about 10 years old. and the youngest a girl about 7 years old. The chief complaint is that the court directed the wife to surrender the dwelling house, and this is a great hardship, but it cannot be avoided except by creating another; that is, the exclusion of the husband from his own home.

The general rule is that a wife is not entitled to have any specific parcel of real estate assigned as her own. Alimony is usually an allowance in money out of the husband's estate, but not the estate itself. Although the decisions are not harmonious, the very great weight of authority is to the effect that unless there is express statutory authority therefor, the court possesses no power to vest in the wife title to a specific portion of the husband's real' estate as alimony.

In Almond v. Almond, 4 Rand. (25 Va.) 668, 15 Am' Dec. 781, it is said:

"Now, the claim of the wife for alimony is a personal claim on the husband; she has no lien on any specific property, without an agreement. She can no more, therefore, ask the court to assign her this negro, or that tract of land, than a creditor of the husband could come into court and ask such assignment, which we know, without a particular lien, could not be done."

These cases are also instructive: Purcell v. Purcell, 4 Hen. & M. (14 Va.) 517; Fall v. Fall, 75 Neb. 120, 106 N. W. 412, 113 N. W. 175, 121 Am. St. Rep. 767; Ecker v. Ecker, 22 Okl. 873, 98 Pac. 918, 20 L. R. A. (N. S.) 421: Reynolds v. Reynolds, 68 W. Va. 15, 69 S. E. 381, Ann. Cas. 1912A, 889, and note; Brenger v. Brenger, 142 Wis. 20, 125 N. W. 109, 26 L. R. A. (N. S.) 387, 135 Am. St. Rep. 1050, 19 Ann. Cas. 1130; 19 C. J. 262; 1 R. C. L. 926.

[2, 31 While we are unwilling to say that there can be no case in Virginia in which the court, in the exercise of its discretion, could permit a wife with her infant children to occupy a specific dwelling house owned by her husband, still we do not find any sufficient reason in this case for departing from the general rule.

Considered then from the strictly financialpoint of view, it appears that a pecuniary allowance of $350 per year as alimony to be paid by a husband whose property is estimated as not exceeding $5,000 in value, and whose earning capacity as a mechanic is $2.50 per day, is fair to the wife, and there are a number of precedents in Virginia which support this conclusion. Among them are Bailey v. Bailey, 21 Grat. (62 Va.) 43; Cralle v. Cralle, 84 Va. 203...