Simonds v. Simonds, 16858
| Decision Date | 12 April 1954 |
| Docket Number | No. 16858,16858 |
| Citation | 225 S.C. 211,81 S.E.2d 344 |
| Parties | SIMONDS v. SIMONDS. |
| Court | South Carolina Supreme Court |
Thomas P. Bussey, Buist & Buist, Charleston, for appellant.
Sinkler, Gibbs & Simons, Stoney & Crossland, Charleston, for respondent.
Appellant and respondent are husband and wife, having been married in 1930. They have an adult, gainfully employed daughter who lives with her mother at the family residence. There are also two minor sons, the older of whom, eighteen, is a freshman at Yale University, and the younger, who is fifteen, is a student at a preparatory school in Maryland. It is alleged in the complaint that the sons live with their mother during their vacations from school, which is at least partially controverted by the appellant. However, the matter of the support of the children is not directly involved in the appeal; the amount expended upon it by their father, the appellant, is a consideration, and will be adverted to again.
The action is for divorce and related relief, upon the ground of habitual drunkenness, Sec. 20-101(4), Code of 1952, which appellant denies now exists. There was served with the summons and complaint on December 7, 1953, a notice of motion for temporary alimony, which was heard by the Circuit Judge at chambers on December 12, 1953. There were no papers in support of the motion except respondent's verified complaint which, however, was not a fatal deficiency, Knight v. Knight, 211 S.C. 25, 43 S.E.2d 610, albeit the burden of proof was upon her, 17 Am.Jur. 440, Sec. 547, privileged suitor though she is, Armstrong v. Armstrong, 185 S.C. 518, 194 S.E. 640. In opposition there was a lengthy return by appellant and an affidavit by the accountant who prepared his and his wife's joint Federal income tax return for the year 1952; and an affidavit by a bank official under whom appellant is employed as a bookkeeper. On the date of the hearing upon the motion the court ordered appellant to pay temporary alimony to respondent at the rate of $600 per month during the pendency of the action, or until the amount should be modified.
The exceptions to the order have been argued by appellant as raising three questions: Was it error to order the payment of temporary alimony? Was the amount awarded excessive? And, was it error for the court to proceed upon the contention and assumption that the payments of temporary alimony would be deductible by the appellant and taxable to the respondent for income tax purposes?
Respondent denies the availability to appellant of the last stated question and contends that there is nothing in the record to indicate that the Federal income tax status of either party influenced the court. Respondent is in error in this contention. The agreed transcript of record for appeal contains the following in the statement: 'Among the oral arguments advanced by counsel for the plaintiff was a contention that any amount which the court might award the plaintiff by way of temporary alimony would be deductible by the defendant and taxable to the plaintiff for income tax purposes.' It appears to be agreed in the briefs that respondent's counsel were mistaken in their quoted contention and that payments of alimony pendente lite by appellant would not be deductible by him for income tax purposes and that they would be tax-exempt income to respondent. Wick v. Commissioner of Internal Revenue, 7 T.C. 723, 161 F.2d 732, 26 U.S.C.A. § 22(k), provides that payments of alimony shall be included in the taxable income of the wife, quoting, 'who is divorced or legally separated from her husband under a decree of divorce or of separate maintenance'; which contemplates a 'permanent' decree, and not temporary alimony payments pendente lite.
The order under appeal does not disclose the influence, if any, of the effect of the tax status of the parties, which we think should have been a proper consideration in arriving at the amount of alimony. Income taxes are so substantial in amount and proportion of one's income that they cannot, in reason and fairness, be left out of account in determining income in such a case as this. In the divorce case of Bennett v. Bennett, 1951, 197 Md. 408, 79 A.2d 513, 29 A.L.R.2d 467, in fixing counsel fees the court stated that the husband's salary was $8,000 net after deduction of taxes, $6,600; and referred to the latter figure as his 'net salary.'
The right of a wife-litigant to alimony pending divorce proceedings is expressly vouchsafed to her by Sec. 20-112 of the Code, the last sentence of which is: 'If such claim shall appear well founded the court shall allow a reasonable sum therefor.' We held in Jeffords v. Jeffords, 216 S.C. 451, 58 S.E.2d 731, that the statute a...
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Simonds v. Simonds, 17370
...fixed in so large an amount because of a lack of knowledge that it would be federal income tax free to the respondent. Simonds v. Simonds, 225 S.C. 211, 81 S.E.2d 344. The record does not show that any Order was thereafter passed fixing and determining temporary The case was referred to the......
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Nienow v. Nienow
...217, 105 S.E. 285; Mungin v. Mungin, 166 S.C. 43, 164 S.E. 238; Poliakoff v. Poliakoff, 221 S.C. 291, 70 S.E.2d 625; Simonds v. Simonds, 225 S.C. 211, 81 S.E.2d 344. Appellant does not claim that it was error for the Trial Judge to order payment of temporary alimony, but he does claim that ......
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Armaly v. Armaly
...on appeal unless the appellant can show abuse of discretion. Peay v. Peay, 260 S.C. 502, 197 S.E.2d 89 (1973); Simonds v. Simonds, 225 S.C. 211, 81 S.E.2d 344 (1954). We have reviewed the entire record in this case and conclude that there was no abuse of discretion. The law as relates to te......
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Jones v. Jones
...in making property and money awards in marital litigation is substantive law and need not be pled or argued, citing Simonds v. Simonds, 225 S.C. 211, 81 S.E.2d 344 (1954). We note first that in Simmonds the question of the tax consequences of the alimony award was argued before the trial ju......