State ex rel. Cecil v. Knapp, No. 11012

CourtSupreme Court of West Virginia
Writing for the CourtThis is an original proceeding in prohibition in which the petitioner, Woodrow Wilson Cecil, seeks a writ to prohibit the defendants, Honorable Norman Knapp
Citation143 W.Va. 896,105 S.E.2d 569
PartiesSTATE ex rel. Woodrow Wilson CECIL v. Norman KNAPP, Judge, et al.
Decision Date11 November 1958
Docket NumberNo. 11012

Page 569

105 S.E.2d 569
143 W.Va. 896
STATE ex rel. Woodrow Wilson CECIL
v.
Norman KNAPP, Judge, et al.
No. 11012.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 30, 1958.
Decided Nov. 11, 1958.

Page 570

Syllabus by the Court.

1. Jurisdiction of courts of equity to entertain suits for divorce exists only by virtue of the statute which confers such jurisdiction.

2. By virtue of the provisions of Section 15, Article 2, Chapter 48, Code, 1931, as amended, the court is vested with a sound judicial discretion which is subject to review by the appellate court in the matter of granting or refusing an award for the maintenance of either party in a suit for divorce and in fixing the amount of such award.

[143 W.Va. 897] 3. Alimony is generally considered as an allowance to the wife out of the earnings of the husband or income from his estate but not the estate itself, and arises from the obligation of the husband to maintain and support the wife according to his means and social position.

4. Alimony is a right of the wife which she may forfeit by her misconduct; and when she is the offender she can not have an award of alimony in a decree of divorce in favor of her husband, in the absence of a statute which authorizes such award.

5. A court of equity, in the exercise of its discretion under the provisions of Section 15, Article 2, Chapter 48, Code, 1931, as amended, in a suit for divorce, may not award permanent alimony to a wife who is guilty of misconduct and whose husband is granted a divorce because of such misconduct; and its action in making such award constitutes an abuse of discretion and exceeds its legitimate powers and for that reason is void and of no force or effect.

Page 571

6. Under Section 11, Article 2, Chapter 48, Code, 1931, suits for divorce shall be instituted and conducted as other chancery suits, except as provided in the statute.

7. In suits for divorce, as in suits in equity in general, all orders and decrees must be justified by the pleadings and by the proof.

8. 'Where there is no pleading to warrant a decree, or part of a decree, the decree, or such part of it, is not merely voidable, but void, as it is not on a matter in issue.' Point 2, syllabus, Waldron v. Harvey, 54 W.Va. 608 [46 S.E. 603].

9. A void judgment, being a nullity, may be attacked, collaterally or directly, at any time and in any court whenever any claim or right is asserted under such judgment.

[143 W.Va. 898] 10. By Section 1, Article 1, Chapter 53, Code, 1931, the writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.

J. W. Maxwell, Beckley, for relator.

Kermit A. Locke, Beckley, for respondents.

HAYMOND, President.

This is an original proceeding in prohibition in which the petitioner, Woodrow Wilson Cecil, seeks a writ to prohibit the defendants, Honorable Norman Knapp, Judge of the Circuit Court of Raleigh County, and Bessie E. Cecil, from the further prosecution of a proceeding in contempt instituted by the defendant, Bessie E. Cecil, against the petitioner, and now pending in that court, and from enforcing a provision of a final decree entered by the Circuit Court of Raleigh County May 21, 1955, in a suit for divorce then pending in that court, in which the petitioner Woodrow Wilson Cecil was plaintiff and the defendant Bessie E. Cecil was defendant, which required the payment by the petitioner, the plaintiff in that case, of permanent alimony to the defendant Bessie E. Cecil, at the rate of fifty dollars per month from the 15th day of June, 1955, until the defendant should remarry or until the further order of the court.

The petition alleges in substance that as the plaintiff, Woodrow Wilson Cecil, was granted a divorce from the defendant, Bessie E. Cecil, in the suit for divorce, the defendant in that suit, being the guilty party, was not entitled[143 W.Va. 899] to alimony; that in awarding alimony in her favor the circuit court, though having jurisdiction of the subject matter and the parties to such suit, exceeded its legitimate powers; and that the defendant, Norman Knapp, as the Judge of that court, should be prohibited from enforcing the provision of the final decree awarding alimony to the defendant Bessie E. Cecil in the proceeding in contempt instituted by her against the petitioner and now pending in the circuit court.

Upon the return day of the rule issued upon the petition the defendant Bessie E. Cecil filed her separate answer which admits the material facts alleged in the petition but denies that upon such facts the petitioner is entitled to the writ which he seeks in this proceeding. The defendant Norman Knapp did not file an answer to the petition. On September 30, 1958, this proceeding was submitted for decision upon the petition of Woodrow Wilson Cecil, upon the answer of the defendant Bessie E. Cecil, the brief of counsel in behalf of the petitioner and the brief of counsel in behalf of both defendants.

In February, 1955, the petitioner as plaintiff instituted a suit against his wife, the defendant Bessie E. Cecil, in the Circuit Court of Raleigh, County, in which he sought a divorce on the ground of cruel or inhuman treatment. The verified bill of complaint in that suit, after alleging facts to establish jurisdiction of the subject matter and the parties in the Circuit Court of Raleigh

Page 572

County, alleged that the plaintiff and the defendant were joint owners of certain real estate and personal property in equal shares, which consisted of a residence in Beckley, a business property and some vacant lots near Beckley, a Buick automobile, and a bank account; that the plaintiff did not desire an award of any of the household furniture or fixtures but did desire an award of the automobile to him as his sole and separate property; and that the real estate and other personal property owned jointly by the parties should be equitably divided between them by the court. The prayer of the bill of complaint was that the plaintiff be granted a divorce from the bonds of matrimony;[143 W.Va. 900] that he be awarded the automobile; that the other property owned jointly by the parties be divided between and awarded to them in such proportion as to the court should seem meet; and that the plaintiff be granted general relief.

The case, having been matured for hearing, was heard by the circuit court in the presence of the divorce commissioner on May 16, 1955, upon process duly served upon the defendant, upon notice to the divorce commissioner, and upon the testimony offered in behalf of the plaintiff. The defendant, though served with process, did not file an answer to the bill of complaint or any other pleading in the case but did appear by counsel at the hearing.

By final decree entered May 21, 1955, the court found that the plaintiff was entitled to the relief prayed for in his bill of complaint, dissolved the marriage theretofore existing between the parties, and granted the plaintiff a divorce from the bonds of matrimony. The decree also provided that the plaintiff Woodrow Wilson Cecil should pay to the defendant Bessie E. Cecil, as alimony for her support and maintenance, the sum of fifty dollars per month from June 15, 1955, until the defendant should remarry or until the further order of the court, awarded all the real estate owned by the parties to the defendant as her sole and separate property and the automobile to the plaintiff as his sole and separate property, and prohibited the parties from marrying again except to each other for a period of sixty days from the date of the entry of the decree.

For some time after the entry of the final decree the petitioner paid the monthly installments of alimony as required by its provision. Later after having been told that the defendant was not by law entitled to alimony he discontinued such payments and in April 1958, having defaulted in the payments in the amount of approximately $450.00, the defendant instituted the pending proceeding in contempt against the petitioner in the Circuit Court of Raleigh County. Upon a hearing of that proceeding on [143 W.Va. 901] June 27, 1958, the petitioner admitted his default in the payment of alimony as required by that provision of the decree of May 21, 1955, as alleged by the defendant, but based his defense to the contempt charged against him on the ground that the provision of that decree requiring him to pay permanent alimony to the defendant is void for the reason that the court in entering it abused its discretion and exceeded its legitimate powers. The court overruled the motion of the petitioner to quash the rule awarded against him and after he had entered his plea of not guilty found the petitioner guilty of contempt in failing to pay the alimony as required by the decree of May 21, 1955. On motion of the petitioner, however, the court suspended further proceedings upon the rule and the judgment of contempt for a specified period of time to enable the petitioner to apply to this Court for relief from the judgment of contempt against him. Following the entry of the order of June 27, 1958, in the proceeding in contempt, the petitioner instituted this proceeding in this Court on September 22, 1958.

The final decree in the suit for divorce, except to the extent that it awards permanent alimony to the defendant Bessie E. Cecil, is not challenged by the petitioner and its validity with respect to the divorce granted the petitioner and the division of property between the parties is not involved in this proceeding.

Page 573

In support of his petition for a writ in this proceeding the petitioner insists that the provision of the final decree of May 21, 1955, in the divorce suit requiring him to pay alimony to the defendant is void on these grounds and for these reasons: (1) In awarding...

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34 practice notes
  • Mullins v. Green, No. 12000
    • United States
    • Supreme Court of West Virginia
    • July 12, 1960
    ...relief will not support a decree unless the facts alleged and the nature of the case warrant it. State ex rel. Cecil v. Knapp, W.Va., 105 S.E.2d 569; State v. Bonham, 119 W.Va. 280, 193 S.E. 340; Waldron v. Harvey, 54 W.Va. 608, 46 S.E. 603, 102 Am.St.Rep. 959; Vance Shoe Company v. Haught,......
  • Banker v. Banker, No. 22166
    • United States
    • Supreme Court of West Virginia
    • May 17, 1996
    ...we said: "Alimony is an allowance made ... to maintain and support" a former spouse. See also Syl. Pt. 3, State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569 We made the following observation in Brady v. Brady, 151 W.Va. at 908, 158 S.E.2d at 364: "Apparently from the vast number of......
  • State ex rel. Lynn v. Eddy, No. 12748
    • United States
    • Supreme Court of West Virginia
    • October 1, 1968
    ...W.Va. 660, 130 S.E.2d 102; State ex rel. Zirk v. Muntzing, 146 W.Va. 878, 122 S.E.2d 851, 94 A.L.R.2d 1033; State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; State ex rel. Rufus v. Easley, 129 W.Va. 410, 40 S.E.2d 827; Lak......
  • Gavenda Bros., Inc. v. Elkins Limestone Co., No. 12012
    • United States
    • Supreme Court of West Virginia
    • November 22, 1960
    ...738] or directly, at any time and in any court whenever any claim or right is asserted under such judgment. State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569; State ex rel. Leeber and Covey v. The Board of Education of The County of Raleigh, 143 W.Va. 584, 103 S.E.2d 797; State of......
  • Request a trial to view additional results
34 cases
  • Mullins v. Green, No. 12000
    • United States
    • Supreme Court of West Virginia
    • July 12, 1960
    ...relief will not support a decree unless the facts alleged and the nature of the case warrant it. State ex rel. Cecil v. Knapp, W.Va., 105 S.E.2d 569; State v. Bonham, 119 W.Va. 280, 193 S.E. 340; Waldron v. Harvey, 54 W.Va. 608, 46 S.E. 603, 102 Am.St.Rep. 959; Vance Shoe Company v. Haught,......
  • Banker v. Banker, No. 22166
    • United States
    • Supreme Court of West Virginia
    • May 17, 1996
    ...we said: "Alimony is an allowance made ... to maintain and support" a former spouse. See also Syl. Pt. 3, State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569 We made the following observation in Brady v. Brady, 151 W.Va. at 908, 158 S.E.2d at 364: "Apparently from the vast number of......
  • State ex rel. Lynn v. Eddy, No. 12748
    • United States
    • Supreme Court of West Virginia
    • October 1, 1968
    ...W.Va. 660, 130 S.E.2d 102; State ex rel. Zirk v. Muntzing, 146 W.Va. 878, 122 S.E.2d 851, 94 A.L.R.2d 1033; State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; State ex rel. Rufus v. Easley, 129 W.Va. 410, 40 S.E.2d 827; Lak......
  • Gavenda Bros., Inc. v. Elkins Limestone Co., No. 12012
    • United States
    • Supreme Court of West Virginia
    • November 22, 1960
    ...738] or directly, at any time and in any court whenever any claim or right is asserted under such judgment. State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569; State ex rel. Leeber and Covey v. The Board of Education of The County of Raleigh, 143 W.Va. 584, 103 S.E.2d 797; State of......
  • Request a trial to view additional results

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