Miller v. Miller, (No. 7702)

• Decision Date: 13 February 1934
• Docket Number: (No. 7702)
• Citation: 114 W.Va. 600
• Court: West Virginia Supreme Court
• Parties: Mildred Shive Miller v. Glenn F. Miller

114 W.Va. 600

Mildred Shive Miller

v.Glenn F. Miller

(No. 7702)

Supreme Court of Appeals of West Virginia.

Submitted February 6, 1934.

Decided February 13, 1934.

Divorce

Alimony must not be disproportionate to a man's ability to pay as disclosed by the evidence before the court.

Appeal from Circuit Court, Cabell County.

Suit by Mildred Shive Miller against Glenn F. Miller, wherein defendant instituted proceeding to obtain reduction of alimony. From a decree of the circuit court affirming an order of the domestic relations court refusing to reduce the alimony, the defendant appeals.

Reversed and rendered.

Daugherty & Daugherty, for appellant.

Geo. 8. Wallace, for appellee.

Maxwell, Judge:

This proceeding involves an effort of a former husband to obtain reduction of alimony which was decreed against him by the domestic relations court of Cabell County.

This appeal is from a decree of the circuit court of said county affirming the action of the domestic relations court in refusing to reduce the alimony.

Mildred Shive Miller was granted a divorce from bed and board from Glenn F. Miller by the said domestic relations court May 29, 1931. On the 12th of February of the same year they had entered into a separation agreement wherein, among other things, it was provided that he pay her the sum of $150.00 per month as long as she should remain unmarried; and, in event of divorce, '' that this contract shall be submitted to the court and the court requested to adopt its provisions in full settlement of alimony of the party of the second part and the property rights between both parties." Such presentation was later made to the court and in its decree aforesaid the court made reference to the said contract and decreed that Glenn F. Miller pay to Mildred Shive M iller the sum of $150.00 per month as alimony for her support and maintenance, beginning June 1, 1931. There are no children.

Glenn F. Miller is treasurer of the Miller Casket Company, a corporation of $50,000.00 capital stock. His father, mother and brother seem to be the controlling stockholders. According to petitioner's testimony his own stock of 72 shares was transferred by him to his mother in part satisfaction of certain indebtedness he owed her. At least two other persons, J. M. Beale and G. P. Harvey, are interested in the corporation and are members of the board of directors.

In 1931, Glenn's salary was $400.00 per month. He says that because of necessary retrenchments due to bad business conditions, his salary was reduced to $300.00 per month the first of January, 1932, and to $175.00 per month January 1, 1933, the last reduction having been made by the board of directors on motion of said Beale. The petition for reduction of alimony herein presented was filed in the trial court March 14, 1933. There had been a similar petition in 1932, but relief thereunder was denied by the trial court and its action affirmed by the circuit court. Following the decree of divorce and alimony of May, 1931, the installments of alimony were paid with great reluctance and in three or.four instances only after contempt proceedings had been prosecuted against Glenn F. Miller because of his failure to comply with the alimony requirements of the divorce decree. He says in his testimony that it was necessary for him to obtain funds from others in order to meet...