Wilson v. Wilson, Record No. 2387.

• Citation: 178 Va. 427
• Decision Date: 24 November 1941
• Docket Number: Record No. 2387.
• Court: Supreme Court of Virginia
• Parties: LAURA VIRGINIA WILSON v. EARL S. WILSON.

Page 427

178 Va. 427

LAURA VIRGINIA WILSON v. EARL S. WILSON.

Record No. 2387.

Supreme Court of Virginia, Richmond.

November 24, 1941.

Present, All the Justices.

1. ALIMONY — Power of Equity to Award — Exists in Suit for Divorce or for Alimony Alone Independently of Statutes. — A court of equity, without regard to statute, has the absolute power to allow alimony, either in a suit for divorce, or in a suit for alimony alone.

2. ALIMONY — Power of Equity to Award — Not Dependent upon Pecuniary Amount Involved. — The power of a court of equity to allow alimony is not dependent upon the pecuniary amount involved, but is derived by virtue of its elastic power to deal with a matter of public interest, regardless of the amount involved.

3. APPEAL AND ERROR — Jurisdiction of Surpreme Court of Appeals — Where Award of Alimony Less Than Three Hundred Dollars — Case at Bar. — In the instant case, an appeal from a decree denyiny alimony, appellee moved to dismiss the appeal on the ground that the Supreme Court of Appeals did not have jurisdiction since the controversy was not one involving three hundred dollars exclusive of costs and was not otherwise appealable.

Held: That since a court of equity has inherent jurisdiction to award alimony, either within or without the provisions of section 5111 of the Code of 1936, the contention of appellee was without merit.

4. ALIMONY — Amount — Within Discretion of Trial Court. — The trial court has a very broad discretion in fixing the amount of alimony, and the appellate court will not interfere with such discretion unless it is clear that some injustice has been done.

5. APPEAL AND ERROR — Matters of Discretion — When Discretion of Trial Court Disturbed. — While the exercise of a sound discretion by the trial court will not be disturbed by the Supreme Court of Appeals, the exercise of an arbitrary discretion by the trial court will not be permitted.

6. ALIMONY — When Alimony May Be Recovered — Circumstances Making Award Duty of Trial Court — Case at Bar. — The instant case was an appeal from a decree denying alimony in a divorce suit. The trial court, at the time of awarding appellant a decree of divorce a mensa et thoro, awarded her alimony for a limited period. On two subsequent occasions the trial court extended the payment of alimony, but appellant's prayer for a further extension was denied. The uncontradicted evidence was that appellant's parents were dead; that she was unable to find employment; that she was in need of medical care; that she had no income; and that appellee was earning fifty dollars per week.

Held: That it was the duty of the trial court to award alimony and counsel fees in an amount warranted by the exigencies of the case.

Appeal from a decree of the Circuit Court of the city of Norfolk. Hon. Allan R. Hanckel, judge presiding.

The opinion states the case.

Sam W. Nathan and Herman A. Sacks, for the appellant.

A. A. Bangel, for the appellee.

CAMPBELL, C.J., delivered the opinion of the court.

This appeal brings under review a decree entered by the chancellor of the circuit court, denying appellant alimony in a divorce suit then pending in said court.

The appellee has moved this court to dismiss the appeal, on the ground that it was improvidently allowed.

The basis of the motion is stated thus: "The Supreme Court of Appeals does not have jurisdiction to hear this case. This was not a controversy involving Three Hundred Dollars exclusive of costs and was not otherwise appealable. Sections 6336-6337 of the Code."

Though this court has repeatedly dealt with the question, the cases involving the power of a court of equity to allow alimony regardless of the amount involved, were not cited in the petition or the brief.

It is the settled doctrine in this Commonwealth that a court of equity, without regard to statute, has the absolute power to allow alimony, either in a suit for divorce, or in a suit for alimony alone.

The power of the court to allow alimony is not dependent upon the pecuniary amount involved, but is derived by virtue of its elastic power to deal with a matter of public interest, regardless of the amount involved.

In Heflin Heflin, 177 Va. 385, 14 S.E.(2d) 317, Mr. Justice Gregory, in a most illuminating opinion, has marshalled all the Virginia cases dealing with the power of a court of equity to allow alimony pursuant to the provisions of section 5111 of the Code, or by virtue of its inherent jurisdiction.

Therefore, it follows as a corollary that, since a court of equity has inherent jurisdiction to award alimony, either within or without the provisions of section 5111 of the Code, the contention of appellee is without merit and the motion to dismiss is overruled.

Appellant assigns as error the entry of the decree denying continued payment of alimony.

The facts set forth in the petition, and not denied, are as follows:

"In the early part of 1938, appellant instituted a suit for divorce against the appellee, her husband, in the Circuit Court of the City of Norfolk, on the grounds of cruelty and desertion, to which suit the appellee filed an answer and cross-bill. The trial court, after hearing all the evidence, decided that the appellee was guilty of cruelty and desertion as alleged in the bill of complaint, and awarded appellant a decree of divorce a mensa et thoro on said grounds; and the trial court, pursuant to the prayer therefor in the bill of complaint, awarded appellant alimony at the rate of $10.00 per week for one year commencing February 18th, 1938, reserving the right to change said decree as to alimony at the end of the year if the circumstances required it. On the 8th day of April, 1939, the trial court entered another decree in the aforementioned suit, extending the alimony for a further period of six months and reserving the right to change this last mentioned decree as to alimony at the end of said six months `if the circumstances shall make proper.' On the 4th day of November, 1939, the trial court entered another decree extending the payment of alimony for a further period of six months from the date thereof and reserving the right to change said decree as to the alimony at any time the circumstances shall require it. On July 13th, 1940, after the expiration of the last six months' period for the payment of alimony, as heretofore set out, and after due notice to the appellee, appellant again applied to the trial court for the further extension of alimony. The uncontradicted evidence in support of said last mentioned petition was that appellant was without funds and means to support herself; that she had no income from any source other than the alimony she had been receiving from her husband; that both her parents were dead; that she had been unable to find employment; that she was in need of medical care, but was without funds to secure the same; that she was taking treatments from a doctor and that she was without funds to continue those treatments; that she was unable to work on account of her health; that the appellee had no dependents upon him and was earning $50.00 per week as an employee at the United States Navy Yard."

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