Wilson v. Wilson

Hudgins, J.,

dissenting.

The motion to dismiss the appeal on the ground that this court is without jurisdiction presents the first question to be determined.

The basis for the motion is that the amount in controversy is less than the jurisdictional requirement. Code, sec. 6337, enacted pursuant to the mandate contained in sec. 88 of the Constitution, eliminates the power of this court to review the judgments and decrees or orders of trial courts.when the controversy is “for a matter less in value or amount than three hundred dollars, * * * unless there be drawn in question a freehold or franchise or the title or bounds of land, or the.action of the State corporation commission, or some matter not merely pecuniary.(Italics supplied.)

*432The decree from which this appeal was allowed denies the appellant, - a wife, the payment of $10 a week ali-mony. It is true that the weekly payments sought would not total thirty weeks on the date the decree was entered, but the question of a husband’s obligation to provide support and maintenance for his wife or children is a matter of public interest and involves more than a matter merely pecuniary. The inherent power of courts to decide questions of alimony, discussed in Heflin v. Heflin, 177 Va. 385, 14 S. E. (2d) 317, as I understand the opinion, was confined to the power of courts of equity of original jurisdiction and was not intended to apply to the appellate jurisdiction of this court in such matters.

The second question involved is- whether the record in this ease shows that the chancellor has abused the legal discretion to grant or withhold payment of alimony.

It appears that on the 23rd of February, 1938, a divorce a mensa et thoro was granted the wife from her husband, Earl Sterling Wilson. In the same decree the husband was ordered to pay the wife the sum of $10 per week for a limited period, namely, one year. On April 8, 1939, on motion of the wife, the payment of this sum was extended for a period of six months “to enable the complainant to obtain employment.” On the 4tb of November, 1939, the payment of the same' sum as- alimony was extended for another six-month period for the’ same purpose and with the same reservation.

On the 13th day of July, 1940, petitioner again applied for an extension of time for the payment of alimony. The chancellor refused the prayer, stating: “This cause came orí this day to be heard on the petition of the complainant praying that the court amend the decrees heretofore entered in this cause and extend the time for the paying of alimony to complainant by the defendant, and the court having heard evidence in open court and argument of counsel, doth deny said prayer * * *."

*433It thus appears from the four decrees that the chancellor was convinced from the evidence introduced before him, and not made a part of the record, that the wife was not entitled to permanent alimony. Twice the court extended the payment for six months, stating- each time that it was for the purpose of enabling- the wife to obtain employment. On the fourth application for alimony, the only evidence offered by the appellant was her - own testimony. She stated that she was without funds and means to support herself, that she had no income from any other source, that she had been unable to find employment, and that she was in need of medical care and attention.

It is apparent that the trial court, in deciding- the issue presented, considered testimony which had been offered before it on other occasions, and that it did- not consider the testimony of the appellant herself sufficient to justify the court in extending the time in which the husband should pay the wife alimony. Before this court is the petition of the wife, supported by the testimony of herself and nothing else. Technically, if we confine our attention solely to this petition and the testimony, and eliminate from our consideration that part of the record which preceded the petition, it is sufficient to sustain the prayer.

The record presents a series of hearings on the same issue. On every hearing- except the last, evidence for each of the parties seems to have been introduced. Every decree reveals that the trial court entertained no doubt as to the fact that, from the evidence then before the court, the wife was not entitled to permanent alimony. She was allowed temporary alimony for the purpose of assuring her maintenance and support while she adjusted herself to the new situation brought about by a disagreement with her husband. None of this evidence was preserved except the testimony of the wife given in support of the last petition, which was similar in all respects to others filed.

*434Under the circumstances, if the decree is reversed, as the majority opinion holds it should be, then litigants, in order to preserve their rights, will be forced to the expense of making all the evidence on each hearing a part of the record, or trial courts will be forced to assume the unnecessary burden of hearing again and again the same evidence theretofore introduced and perfectly well known to them. The inevitable conclusion of the majority seems to me to unnecessarily delay the final determination of. causes and tends to increase the expense of litigation, as well as to be deciding issues on a partial view of the evidence before the trial court.

For these reasons, it seems to me that the decree of the trial court should be affirmed.