Smith v. Smith, 10255

• Citation: 59 S.E.2d 894,134 W.Va. 448
• Decision Date: 31 May 1950
• Docket Number: No. 10255,10255
• Court: West Virginia Supreme Court
• Parties: SMITH, v. SMITH.

Page 894

59 S.E.2d 894

134 W.Va. 448

SMITH, v. SMITH.

No. 10255.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1950.

Decided May 31, 1950.

Syllabus by the court.

In a suit for divorce, courts are empowered by Code, 48-2-15, to enter such orders and decrees as may be deemed expedient to secure compliance with orders and decree relating to the care, custody, education and maintenance of minor children, including the power to impound personal property; such power is a discretionary one, reviewable by the Supreme Court of Appeals.

H. D. Rollins, Charleston, for appellant.

E. Franklin Pauley, Charleston, Larry W. Andrews, Charleston, for appellee.

GIVEN, Judge.

This suit for divorce was instituted by the wife, Treva Marie Bradley Smith, in the Court of Common Pleas of Kanawha County. The bill alleges cruelty on the part of the husband, Kenneth Cleveland Smith. The defendant answered, denying the allegations of cruelty and, by way of affirmative relief, sought a divorce from plaintiff on the ground of adultery. Much evidence was produced by the parties, some of which tended to sustain the allegations of the bill and some of which tended to sustain the allegations of the answer for affirmative relief. The court, believing both parties at fault and not in equity with clean hands, denied a divorce to either, awarded custody of the two minor children to plaintiff, directed the defendant to pay to plaintiff a certain sum for support and maintenance of the children, impounded certain funds of defendant, and directed that the funds impounded be held as security for the payment of the support and maintenance so ordered. The Circuit Court of Kanawha County, by order of September 12, 1949, denied the defendant an appeal from the final decree of the court of common pleas, and this Court granted an appeal from that order, limiting the appeal, however, to the matter of the impounding of the funds. This makes it unnecessary to state the evidence in detail except as it may relate to the one question.

The parties were married in December, 1933, and separated in November, 1946. At the time of the taking of depositions the plaintiff was thirty-five years of age and the defendant was forty-seven years of age. They were the parents of two children, a boy born April 19, 1937, and a girl born May 3, 1946. The defendant was employed as a salesman but his net earnings were not clearly established. His gross earnings were estimated as high as $15,000.00 for some years, but he contends that his average gross income would be much less and that his net income would be still considerably less because of travel and other operational expenses. The plaintiff had no separate income but contends that she assisted the defendant in his business by keeping books, taking care of correspondence and similar work, all in the home, and that this work required two or three hours of time each day for about four days each week. The defendant denies this but admits she did some such work as filing duplicate statements, which required not more than twenty minutes each day.

In 1935 the parties purchased a home on Beech Avenue in Charleston, paying therefor the sum of $3,400.00. She testifies that she received $2,500.00 for an injury received from an automobile accident and that $2,000.00 of that sum was applied to the purchase price of this property and that 'he paid the rest'. In 1941 they purchased and moved to a property on Florence Drive in Charleston, and thereafter occupied the same as a home until the time of the separation. The dwelling thereon consisted of seven rooms and two baths, but was at the time of purchase unfinished. The purchase price of this property was $8,700.00, of which approximately $2,700.00 was paid in cash and the balance was represented by an assumed loan secured by a trust deed lien against the property. Later the Beech Avenue property was sold for $7,750.00, of which $6,000.00 was applied to the discharge of the loan so assumed and 'the rest was put in bonds'. Title to both of these properties was taken in the name of the wife. Apparently she now claims title to the Florence Drive property, but he says that the reason he put the property in her name was '* * * Well, I travel and wanted to keep her protected so that if anything ever happened to me, she wouldn't have any trouble about it, and also if I had any business dealings that I would lose--she would still be able to have a home--her and Sonny.' After the purchase of the Florence Drive home over six thousand dollars was spent in finishing and improving the dwelling thereon and it was, at the time of the separation, completely furnished. The wife claims the furniture as her own property. The value of the Florence Drive property at the time of the separation was estimated to be approximately $18,000.00. It was then free from liens and apparently the furniture therein was paid for. In addition to the home property the parties owned jointly a small parcel of land on Elk River, called camp property, which cost $950.00 and, at the time of the separation, was estimated to be worth approximately $1,200.00.

The defendant carried $15,000.00 of life insurance and his son was named beneficiary in the policies. He owned an automobile and stocks of various corporations, the face value of which was approximately $2,500.00. In addition to the above the defendant had purchased certain government bonds and the wife was named in the bonds as 'beneficiary'. The value of such bonds is not clearly indicated. She testified that at one time the maturity value of the bonds was as much as $22,000.00 The defendant testified to the effect that the maturity value thereof was approximately $16,000.00 and that the cash value was approximately $12,000.00. Some of the bonds were cashed from time to time to pay taxes, insurance premiums and costs incurred in connection with this litigation. Later the defendant cashed the balance of the bonds, received therefor the sum of $7,684.50, and obtained a casher's check for that amount, payable to himself.

On January 9, 1947, the trial court entered a decree directing the defendant to pay to the plaintiff the sum of $300.00 per month, $175.00 being for temporary alimony and $125.00 for support and maintenance of the two children during the pendency of this suit. By decree of October 30, 1948, the trial court reduced the amount of such payments to $200.00 per month. The final decree, which awarded custody of the two children to the plaintiff, directed defendant to pay to the plaintiff the monthly sum of $125.00 for the support and maintenance of the children. The final decree allowed no sum to plaintiff for her support.

On October 24, 1948, the defendant apparently having failed to make payments in accordance with the decree mentioned above, the trial court decreed that the defendant deliver to the receiver of the court the cashier's check for $7,684.50 and that the receiver hold the check until the further order of the court. By decree of November 22, 1948, the defendant having failed to deliver the check in accordance with the decree of the court, the court decree that the body of the defendant be attached and brought before the court. The attachment apparently was not served. However, on January 11, 1949, the defendant appeared in court, made tender of the check to the court and moved the court to modify the previous order by permitting the check to be delivered to the clerk of the court instead of to the receiver, which motion was sustained...