Wilson v. Wilson

• Decision Date: 03 May 1954
• Citation: 81 S.E.2d 605,195 Va. 1060
• Parties: THELMA CHRISTINE WILSON v. EDWIN L. WILSON
• Court: Virginia Supreme Court

Page 605

81 S.E.2d 605

195 Va. 1060

THELMA CHRISTINE WILSON v. EDWIN L. WILSON.

Supreme Court of Appeals of Virginia

May 3, 1954.

Percy Carmel and Arthur W. Woltz, for the appellant.

Peter O. Miller, William H. King and McGuire, Eggleston, Bocock & Woods, for the appellee.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

This appeal was granted to review two decrees entered in the Circuit Court of the City of Warwick, on March 9, and April 27, 1953, in a suit there pending involving the domestic difficulties of Edwin L. Wilson and his wife, Thelma Christine Wilson.

The litigation was begun before the late Honorable Frank Armistead, judge of the court. After his death and pending the appointment of his successor, Honorable Frank A. Kearney presided and entered certain decrees in the proceeding. Honorable C. H. Shield, Jr., who was appointed to succeed Judge Armistead, disqualified himself and Honorable Richard B. Spindle was designated to preside, the decrees here complained of having been entered by him.

On June 13, 1951, Edwin L. Wilson, hereinafter referred to as the husband, filed a bill for divorce against his wife, Thelma Christine Wilson, herein referred to as the wife, charging cruelty and willful desertion, and praying for a divorce a mensa on these grounds. The wife filed her answer denying the charges, the answer containing a cross-bill in which she asked for separate maintenance for herself and support for the three minor children of the marriage. The cross-bill also prayed that the wife be awarded the custody of the children and that the husband be enjoined from disposing of his property. She did not seek a divorce.

When the evidence offered by the husband in support of his bill for divorce was concluded, counsel for the wife moved that it be stricken for the reason that it was insufficient to justify a divorce in favor of the husband. This motion was sustained by a decree entered on June 19, 1952. The decree also dismissed the husband's bill for divorce and ordered the cause continued for hearing on the wife's cross-bill.

On June 20, 1952, a decree was entered awarding the wife temporary alimony in the sum of $250 per month. The further sum of $200 per month was allowed for the support of the minor children. The decree also directed that the husband pay his wife $1800, representing support money for the months of March, April and June, 1952, as agreed upon at the suggestion of counsel. By decree entered on August 5, 1952, it was ordered that the husband's realty be subject to a lien for the required payments of alimony and support money.

On September 22, 1952, the husband was ordered to appear before the court to show cause, if any he could, why he should not be punished for contempt of court for having failed to comply with the decree of June 20, 1952. On October 7th the court held: '* * * and it further appearing from the evidence that the complainant, E. L. Wilson, has made no effort to comply with the decree of this court and by his acts and actions has attempted to avoid and evade said decree, which constitutes a deliberate and studied contempt of this court * * * and * * * that (he) having wilfully disobeyed said decree * * * is committed to the City Sergeant of this City to be held in jail for a period of six (6) months for said contempt.' The imposition of the foregoing sentence was suspended until November 8, 1952, on which date, the husband having made all payments required of him, the jail sentence was revoked.

On February 12, 1953, the husband filed a petition requesting the court to compel his wife to proceed with the prosecution of her claim under the cross-bill. On March 9th the court entered a decree requiring the wife to proceed with her suit and to conclude the same not later than March 30, 1953. By this decree, Arthur F. Eisenman, Jr., was appointed special commissioner with directions that he execute in the name of Mrs. Wilson deeds conveying her dower interest in seven lots with the improvements thereon, belonging to the husband, and described in the decree. The decree ordered that Mrs. Wilson's dower interest in the said property be commuted and the sum representing the commuted dower be deposited with the clerk pending further order of the court.

The decree of March 9th also revoked and annulled so much of the decree of August 5, 1952 as created a lien on the husband's realty to secure the payments of alimony to the wife and support money to the children. The lien so created was specifically removed from the property directed to be sold by the special commissioner. Further, this decree suspended the temporary alimony payments to the wife for the months of January, February and March, 1953, reserving for decision the propriety of requiring said payments to be made until the entry of the final decree. To all of the foregoing Mrs. Wilson, by counsel, excepted.

On April 2, 1953, the special commissioner filed his report which disclosed the sale of the seven houses and lots by E. L. Wilson to E. L. Wilson, Incorporated, for the price of $50,000. He reported that he had, as ordered, affixed the signature of Thelma Christine Wilson to the deed consummating the sale. He further reported that he had computed and deposited with the clerk a sum representing Mrs. Wilson's contingent dower interest in the property.

Evidence presented on behalf of the wife relating to alimony, support money for the children and their custody, was heard ore tenus on March 30, 1953, and it was transcribed and filed in the cause.

The final decree entered on April 27, 1953, adjudicated the questions raised, in numbered paragraphs, which may briefly be summarized as follows:

(1) The wife was granted separate maintenance.

(2) The wife's request that she and the children be permitted to remain in the home known as No. 6 Westover Road was denied, to which ruling she excepted.

(3) The husband was required to pay the following: (a) For the support and maintenance of Mrs. Wilson, $250 per month; (b) for the support of the three infant children, $200 monthly; (c) for lodging for the wife and children, $125 per month, which sum was not to be paid so long as the wife and children continued to occupy the home. To all this Mrs. Wilson excepted on the ground that the amounts were inadequate.

(4) The husband was required to pay, without interest, the sums for temporary alimony withheld from Mrs. Wilson under the decree of March 9, 1953.

(5) The custody of the three children was awarded to the mother with the right granted the father to visit them and have their custody at specified times.

(6) The court held: 'Pursuant to the authority conferred on the court by § 20-107 of Michie's Code of Virginia now in effect, it is adjudged, ordered and decreed that from and after the date of the entry of this order, the complainant, Edwin L. Wilson, shall own and hold title to all of his real estate as though unmarried and the defendant's contingent right of dower therein is extinguished.' It was further held that the husband was entitled to receive the fund deposited with the clerk representing the commuted inchoate dower of the wife in the seven houses and lots which had been sold; and the action of the special commissioner in affixing Mrs. Wilson's signature to the deed and the sale thus made was ratified and approved, to all of which Mrs. Wilson, by counsel, excepted.

(7) The home known as No. 6 Westover Road was impressed with a lien for the payment of the alimony and support money decreed but the court specifically decreed that this was the only property of the husband affected by the lien, which should 'not encumber any other real estate now or hereafter owned by the said E. L. Wilson'. To this portion of the decree the wife excepted.

(8) An allowance of $750 was fixed for Mrs. Wilson's attorney.

(9) The cause was retained on the docket for further proceedings.

(10) The concluding paragraph ordered the clerk forthwith to comply with 'paragraph (6) hereof' which required him to deliver to the husband or his attorney the funds held as the wife's commuted dower interest in the seven houses.

While the assignments of error are six in number, as we view the case they present generally four questions for decision:

1. May a court of equity properly decree in a proceeding of this character that specific property be set apart for the sole use of the wife and minor children?

2. Was the allowance for support and maintenance sufficient under the evidence?

3. Does § 20-107 of the Code of Virginia grant to a court of equity, in a proceeding of this nature, the right to extinguish an inchoate dower interest?

4. Did the lower court abuse its discretion in decreeing that a lien to secure the payments to the wife and children be limited to No. 6 Westover Road?

The record discloses that the Wilsons were married on June 4, 1925, and had lived in the immediate vicinity of their present home during their married life. Prior to the institution of the divorce suit the parties lived at No. 6 Westover Road in the city of Warwick, in a home which had been constructed many years ago by the husband at a cost of approximately $10,000, its estimated present value being $25,000.

Five children were born of this union and two of them are now of age. The three minor children, Bennett, aged 18; Douglas, aged 13; and Parks, aged 5, live with their mother.

When the Wilsons were first married the husband worked in the shipyards at a wage of $28 a week. Soon thereafter he accepted employment with a building firm and speedily progressed. In a short time he was made vice president of the firm, receiving a salary of $10,000 per year. Later he went into a similar business for himself and continued to prosper. His wife acted as an officer in several corporations organized by him and at various times he divided profits with her. At the time of the divorce proceeding the record disclosed that the wife had...