Richards v. Richards

• Decision Date: 19 August 1960
• Docket Number: 4068,Nos. 4062,s. 4062
• Citation: 355 P.2d 188,44 Haw. 491
• Parties: Helen Hughes RICHARDS v. Atherton RICHARDS.
• Court: Hawaii Supreme Court

Page 188

355 P.2d 188

44 Haw. 491

Helen Hughes RICHARDS v. Atherton RICHARDS.

Nos. 4062, 4068.

Supreme Court of Hawai'i.

Aug. 19, 1960.

Syllabus by the Court

1. Under R.L.H.1955, § 324-34, if a wife's income is insufficient for the maintenance of her accustomed standard of living and for the efficient prosecution of her libel, she may be awarded temporary alimony to supplement her income and may be allowed reasonable expenses of trial, including temporary and final attorneys' fees.

2. S.L.H.1955, c. 77, which is incorporated in R.L.H.1955, § 324-37, did not change the pre-existing law regarding alimony.

3. The phrase 'the respective merits of the parties,' as used in R.L.H.1955, 324-37, means the merits of the respective claims of the spouses to the property sought to be divided and is pertinent only in connection with division of property.

4. Under R.L.H.1955, § 324-37, the judge is empowered to order a division of property independently and without regard to his action on alimony, but, in determining the amount of alimony, the judge is required to take into account the resources of the wife, including the property apportioned to her in the divorce proceeding.

5. Under R.L.H.1955, § 324-37, the judge may make a cash award in lieu of division of property in kind where a spouse establishes a meritorious claim but specific division is either impracticable or does not bring about a fair and equitable result.

6. Normally the principal consideration in determining the amount of periodic alimony should be the respective income of the parties. There may be situations which require consideration of factors other than income in arriving at a just result, such as where a substantial portion of the capital of either party is kept in non-productive form, or where either party, though in good health, malingers or otherwise fails to use his or her talent in income-producing endeavors.

7. Periodic alimony is normally preferred over alimony in gross because it allows the judge to control its amount more effectively and change it from time to time according as the means and needs of the parties change.

William Saunders, Honolulu, Lewis, Buck & Saunders, Honolulu, on the briefs, for libellant-appellant, cross-appellee.

Willson C. Moore and Willson C. Moore, Jr., Honolulu, and Robertson, Castle & Anthony, Honolulu, on the briefs, for libellee-appellee, cross-appellant.

Before TSUKIYAMA, C. J., and MARUMOTO, CASSIDY, WIRTZ and LEWIS, JJ.

MARUMOTO, Justice.

Helen Hughes Richards, libellant, filed a libel for divorce against Atherton Richards, libellee, on June 30, 1955. In her libel, as originally filed, she sought a decree of divorce from bed and board on the ground of grievous mental suffering inflicted upon her by libellee. In addition thereto, she sought temporary alimony and advancement of reasonable expenses to be incurred for trial, pending the final disposition of the libel. She also sought permanent alimony, attorneys' fees and other expenses of prosecuting the libel over and above advances previously made, and division of property, upon the granting of divorce.

Shortly after the filing of the libel, the circuit judge held hearings to determine whether libellee should be required to pay temporary alimony and to advance reasonable expenses to be incurred for trial. He deferred his decision on temporary alimony upon stipulation of the parties that such alimony might be awarded if after a full hearing of the case the award should be found fair and reasonable. Decision on temporary attorneys' fee was also deferred. However, the judge ordered libellee to advance $500 to libellant for expenses of taking depositions.

In due course, libellee filed his answer denying the allegations of the libel. He also filed a cross-libel in which he sought absolute divorce on the ground of grievous mental suffering inflicted upon him by libellant.

The libel and cross-libel were set for hearing on January 26, 1956. At the outset of the hearing, libellant moved to amend her libel by praying for a decree of absolute divorce, instead of divorce from bed and board, and changing the prayer for division of property to conform to the wording of S.L.H.1955, c. 77, which amended R.L.H.1945, § 12226, and is now incorporated in R.L.H.1955, § 324-37.

Upon the granting of libellant's motion, libellee announced that he would not offer any evidence in support of his cross-libel. The judge thereupon heard so much of libellant's testimony as he deemed sufficient to establish the ground for divorce, and rendered an oral decision dismissing libellee's cross-libel, granting absolute divorce to libellant on the ground alleged in the libel, and reserving the questions of temporary and permanent alimony, expenses of the proceeding, and division of property, for decision at a later date. A decree of divorce conforming to the oral decision was entered on March 14, 1956.

The judge took voluminous evidence bearing on the questions of alimony, expenses of the proceeding, and division of property at extensive hearings held over a period of seven months. Upon consideration of such evidence, he filed a decision in which he made an award of permanent alimony of $600 per month, commencing as of February 1, 1956; an allowance of $3,036.99 for expenses; and a division of household furniture, silver, works of art, and other paraphernalia, whereby the bulk of such property went to libellant. He denied temporary alimony for the period between June 30, 1955, and February 1, 1956, and division of property other than household paraphernalia. The allowance of $3,036,99 for expenses was in addition to the sum previously advanced for the taking of depositions, but did not include attorneys' fees and fee and expenses of expert witness. A supplemental decree of divorce in accordance with such decision was entered on September 27, 1957.

The case is before this court on appeals by libellant and libellee from the supplemental decree of divorce. On these appeals, the propriety of the granting of the divorce is not in question. Nor is there any question regarding the division of household paraphernalia.

On her appeal, libellant charges that the judge erred in entering the decree of divorce before deciding the remaining issues of the case; in denying temporary alimony, temporary and final attorneys' fees, and fee and expense of expert witness; in failing to award adequate permanent alimony; and in failing to make a division of property other than household paraphernalia.

Libellee, on his appeal, specifies but one error, namely, that the judge erred in ordering him to pay libellant's expenses other than attorneys' fees and fee and expenses of expert witness.

Libellant's charge that the judge erred in entering the decree of divorce before deciding the remaining issues of the case does not present any question for review on her appeal. The decree was entered over libellant's objection. The basis of the objection was that the entry of the decree would cut off libellant's dower, and if libellee should die before the judge decided the remaining issues, libellant would not only be without dower but also be without any relief to compensate for her loss of dower. Such objection is now moot by reason of the entry of the supplemental decree of divorce.

Libellant's charge of error regarding the denial of temporary alimony is well taken. The judge made the monthly payments of alimony retroactive to February 1, 1956. According to the decision, he did so pursuant to the stipulation of the parties. But the stipulation of the parties was that temporary alimony be made retroactive to the date of filing of the request therefor, if it should be found fair and reasonable after a full hearing of the case. The request for temporary alimony was contained in the prayer for relief in the libel for divorce filed on June 30, 1955. Thus, on the basis of stipulation of the parties, alimony payments should have been made retroactive to June 30, 1955.

Also, entirely apart from the stipulation of the parties, the application of pertinent statutory provision to the facts of this case leads to the same conclusion. This point may be considered in connection with libellant's charge that the judge erred in denying her request for attorneys' fees and fee and expenses of expert witness, and libellee's charge that the judge erred in ordering him to pay libellant's expenses other than attorneys' fees and fee and expenses of expert witness. These charges involve the application of R.L.H.1955, § 324-34, which reads as follows:

'After the filing of a libel for divorce or separation the judge may make such orders relative to the personal liberty and support of the wife pending the libel as he may deem fair and reasonable and may enforce such orders by summary process. The judge may also compel the husband to advance reasonable amounts for the compensation of witnesses and other expenses of the trial, including attorney's fees, to be incurred by the wife and may from time to time amend and revise such orders.'

The foregoing provision is an amendment of R.L.H.1945, § 12224, made by S.L.H.1955, c. 79. The original provision read as follows:

'Whenever it shall be made to appear to the judge after the filing of any libel, that the wife is under restraint or in destitute circumstances, the judge may pass such orders to secure her personal liberty and reasonable support, pending the libel, as law and justice may require, and may enforce such orders by summary process. The judge may also compel the husband to advance reasonable amounts for the compensation of witnesses and other reasonable expenses of trial to be incurred by the wife. The judge may revise and amend such orders from time to time.'

In Nobrega v. Nobrega, 13 Haw. 654, this court construed the original provision as prohibiting the judge from awarding temporary alimony to a wife who owned real property of the approximate value of $3,5000, it being...