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Poe v. Poe

decided: March 20, 1969.

ALBERT B. POE
v.
MARGARET G. POE, APPELLANT



Freedman, Van Dusen and Aldisert, Circuit Judges.

Author: Freedman

Opinion OF THE COURT

FREEDMAN, Circuit Judge.

This action for divorce was brought by the husband, who charged adultery, desertion and incompatibility of temperament. At the trial the wife amended her answer, which had sought a decree of separation and support, to include a cross-complaint for divorce on the ground of incompatibility of temperament. The district court granted an absolute divorce to each party in favor of the other. The decree did not fix the ground for divorce, although it appears from the record that the court considered that incompatibility had been established. The wife does not attack the award of a divorce, but she appeals from the denial of her application for alimony and counsel fees.

The award of alimony on an absolute divorce is authorized by 16 V.I.Code, § 109, which provides:

"Whenever a marriage is * * * dissolved the court may further decree --

"(3) For the recovery from the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other * * *."

This language was written for the usual grounds for divorce, without focusing on the unusal ground of incompatibility of temperament. We recognized this fact in Burch v. Burch, 195 F.2d 799, 811-812, 2 V.I. 559, 581-582 (3 Cir. 1952), where we held that the plaintiff himself was a "party in fault" for purposes of § 109 (3) where he sued for divorce on the ground of incompatibility of temperament because this ground necessarily involves both parties. Alimony therefore was held allowable to a wife who is divorced on the ground of incompatibility of temperament.

The statutory authorization of alimony does not necessarily mean that a wife is entitled to such an award in every case. As we said in Burch :

"Whether an award of alimony shall be made, as well as the amount to be awarded, is within the discretion of the court, having regard to the conduct of both parties, the amount of property of each and all the other circumstances of the case."*fn1

In applications for alimony the district court necessarily exercises a broad discretion,*fn2 for it is familiar with the parties and their personal and financial circumstances.

In the present case, it is impossible for us to determine the precise reason for the court's denial of alimony. The court referred to two circumstances: one was that the husband's financial resources had come to him by inheritance after the separation of the parties and so was not the result of their joint efforts; the other was the pendency of two actions for support brought in the Municipal Court of the Virgin Islands*fn3 which the district court stayed and consolidated with the divorce action.*fn4

The district court stated that the support claims, if reduced to judgment, "* * * should provide her [the wife] with a modest lump sum," which the parties calculated at the argument before us would amount to $4,880. The district court, however, remanded both actions to the municipal court "for proceedings not inconsistent" with its opinion, and refrained from expressing an opinion on their merits.

Thus it appears that the district court left it open to the municipal court to diminish the lump sum payable to the wife in those two actions while at the same time reasoning that she should not be awarded alimony because of the lump sum she would receive. There is a direct contradiction in the denial of alimony because a lump sum has accumulated in arrearages of support, when at the same time the amount of the lump sum is left for future determination in another court. One of the two so-called support actions, designated an "action in debt," was brought in the municipal court upon a judgment entered in New Jersey for arrearages under a New ...


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