Robinson v. Robinson

Decision Date02 March 1948
Docket NumberCC728.
Citation50 S.E.2d 455,131 W.Va. 160
PartiesROBINSON v. ROBINSON et al.
CourtWest Virginia Supreme Court
Dissenting Opinion Nov. 29, 1948.

Certified from Circuit Court, Kanawha County.

Syllabus by the Court

Where in a suit for divorce prosecuted by the wife, there is a decree in her favor for the divorce sought, and for the custody of children; and also, as a part of the same decree the defendant husband is required to pay to the wife a fixed monthly sum for the support of said children, until the further order of the court; such decree is one for the payment of money, under Code, 38-3-6, and becomes a lien on the real estate of the husband, which may be enforced as the required payments accrue or mature, during the lifetime of the husband; but may not accrue or mature, or be enforced against the estate of the husband, real or personal, after his death.

HAYMOND J., dissenting.

Graham C. Painter, of Charleston, for plaintiff.

Spilman, Thomas & Battle and Howard R. Klostermeyer, all of Charleston, amici curiae.

FOX Judge.

This is a certified case coming to us from the Circuit Court of Kanawha County. The demurrer interposed to the plaintiff's bill was sustained by the court below, and said court, on its own motion, certified its ruling to this Court.

The facts as alleged in the bill of complaint, and upon which the ruling of the court below was made, are as follows:

On August 26, 1943, in a suit then pending in the Court of Common Pleas of Kanawha County, Laura G. Robinson was decreed a divorce, from the bonds of matrimony, from W. E. Robinson; the custody of two children, James Edward Robinson, age eleven years, and Patricia Robinson, age thirteen years, was awarded to the plaintiff in said suit; and it was ordered and decreed 'that the defendant (W. E. Robinson) do pay unto said plaintiff for said support and maintenance of said children the sum of $45.00 per month, beginning as of the date when plaintiff shall have established such home separate and apart from said defendant; and that such payments shall continue until the further order of this court'. The sum so decreed for maintenance and support was paid monthly until the death of W. E. Robinson, in October, 1944.

W. E. Robinson died testate, and by his will dated November 20, 1943, disposed of his estate in the manner following: (1) the proceeds of a life insurance policy, in the sum of two thousand dollars, was bequeathed to his sons, R. W. Robinson and James Edward Robinson, and to his daughter Patricia Robinson, equally, and (2) 'all the rest and residue of my property, real, personal and mixed wherever situate, including my business, I give, devise and bequeath to my son R. W. Robinson, charging the property included in this item II with the payment of my just debts'.

An executor was not named in the will, and on its probate, on October 17, 1944, R. W. Robinson, the plaintiff herein, was, by the County Court of Kanawha County, appointed administrator with the will annexed of the said estate; and on October 8, 1945, the defendant, Laura Belle Robinson was duly appointed and qualified as guardian of the infant defendants, Patricia Robinson and James Edward Robinson.

At the date of the death of W. E. Robinson, he was the owner of certain real estate situated in the City of Charleston, consisting of a lot on Elk Road or Crescent Road, conveyed to W. E. Robinson and Mamie M. Robinson, his wife, the complete title to which became vested in W. E. Robinson on the subsequent death of his wife, under the provisions of the said deed; and a certain tract or parcel of land situated in upper Glen Elk Addition, Kanawha County, conveyed to W. E. Robinson and Mamie M. Robinson, his wife, by Paulina Smith and husband, in which complete title likewise passed to the said W. E. Robinson, upon the death of his then wife, both of said tracts of land having been conveyed to W. E. Robinson and Mamie M. Robinson, as joint tenants, with remainder in fee to the survivor.

Subsequent to the entry of the decree of divorce aforesaid, and on February 7, 1944, said W. E. Robinson executed a deed of trust on the first above mentioned tract of land, to secure the Charleston Federal Savings and Loan Association in the payment of the sum of two thousand dollars; and on the same day executed a like deed covering the second of the above mentioned tracts, to secure to the Charleston Federal Savings and Loan Association the payment of a note of fifteen hundred dollars; and it is alleged in the bill that neither of said notes has been paid in full, and that said deeds of trust have not been released. It is further alleged, that the plaintiff has been offered a fair price for one of the parcels of real estate, aforesaid, by one Theressa M. Mathes; that he has made a contract to convey same to her with a general warranty of title, subject to the approval by the Federal Housing Authority, and that said Authority has refused to approve the title to said real estate for the reason that said provision in said decree for the payment of forty-five dollars per month, aforesaid, constitutes a continuing lien on said real estate; and that unless said provision in said decree is cancelled and declared null and void, as sustaining a present lien thereon, plaintiff will be unable to dispose of said real estate at its fair value.

The bill in the cause was filed at December Rules, 1946, and on March 29, 1947, on motion of the plaintiff, the court appointed Jackson D. Altizer as guardian ad litem for the infant defendants; and he, as such guardian, on April 3, 1947, and in the name of his said wards, tendered and was permitted to file their joint demurrer to the plaintiff's bill setting up, as grounds therefor, the following:

'(1) The decree of the Court of Common Pleas of Kanawha County, West Virginia, rendered on August 26, 1946, described in said bill of complaint, was a final decree not now appealable and by its terms and provisions the liability of the defendant in said cause, W. E. Robinson, and his estate for the maintenance and support of his infant children, Patricia Robinson and James Edward Robinson, became res judicata and can not be impeached or disturbed save by a bill of review or petition filed in the same court wherein it was rendered and the provision providing for the support of said infants can not be abrogated in its entirety until the youngest infant shall have attained the age of twenty-one years.

'(2) The lien imposed by said final decree of the Court of Common Pleas is a valid and subsisting lien upon the real estate described in the bill of complaint and is in no sense a cloud upon plaintiff's title to said real estate, plaintiff having acquired said real estate by devise subject to any valid liens against the same existing at the time of the death of plaintiff's testator.

'(3) The bill of complaint does not state grounds for the equitable relief therein prayed and is without equity.

'(4) For other reasons to be assigned at the hearing of this cause.'

On June 30, 1947, the Circuit Court sustained the demurrer aforesaid, with leave to amend, and on its own motion certified its ruling to this Court, stating the questions involved in the exact language in which they were stated in points 1, 2 and 3 of the said demurrer. On September 15, 1947 we docketed the case for hearing.

It is clear that the single question here presented is whether the force and effect of the decree for maintenance and support of the infant defendants, Patricia Robinson and James Edward Robinson, entered in the divorce proceeding aforesaid, on August 26, 1943, continued beyond the death of W. E. Robinson, against whom the decree operated. It is a question with which, in its stark form, this Court has not been heretofore confronted; and one the importance of which cannot easily be minimized.

The decisions of the courts of other jurisdictions on the question are in sharp conflict. In a note affixed to the case of Stone v. Bayley, Executor, 75 Wash. 184, 134 P 820, 48 L.R.A.,N.S., 429, it is stated that 'this question usually arises, however, in cases of divorce where the mother is given the custody of the child, and the father is ordered to pay her a stipulated amount for its support, the general rule being that such an obligation created by decree of court does not terminate upon the death of the father in case he dies before the child arrives at majority, but survives his death'; and in the first point of the syllabus to the main case it is held 'an obligation assumed by a father in connection with a divorce, to contribute a certain amount per month towards the support of his child, the payment to continue during minority of the child, but to cease upon her earlier death, survives his death during minority of the child'. It would appear, however, that in that case the father had, in addition to his common law liability, voluntarily assumed an obligation to support his child during its minority, which seems to have been carried into the decree entered in the case. That may create a different situation from that present in the case at bar, where there is no express provision that the payments involved should continue during the minority of the child, but only until further order of the court. However, in Miller v. Miller, 64 Me. 484, custody of children was decreed to the mother, and the father was required to pay a certain sum quarterly for their support, until the further order of the court. It was there held, that, under the statute of that state, the court was authorized to make such a decree and to provide that it should continue in force after his decease, or until they were able to provide for themselves. This theory is also supported by Murphy v. Moyle, 17...

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