Stuart v. Stuart

OPINION

By RICHARDS, J.

The parties have been husband and wife for more than 30 years. It will be observed that the trial court, although it found the plaintiff in the right and that she was entitled to a divorce, awarded her no alimony but held simply that she was entitled to the furniture which was already hers and to the undivided one-half of the real estate, the same already belonging to her. The real estate was worth perhaps from $5,000 to $6,000, which would seemingly leave a substantial value in the property for the husband and wife above the mortgage. The wife, having been found entitled to a divorce, should, have had some' allowanee of alimony, as the primary duty of supporting the wife rests upon the husband. Under the facts as found by the court, the duty to allow alimony was mandatory, but the amount of it was within the judicial discretion of the trial court.

McGinnis v McGinnis, 9 Oh Ap, 81:

Coleman v Coleman, 37 Oh Ap, 474; (8 Abs 481).

The record discloses that the husband was out of employment and evidently had no source of income. These facts and all other facts in the case, including the source from which the real estate came, should be considered in fixing the alimony. It may well be, under the evidence in the record, that the allowance of alimony to be made in favor of the wife should be very small, but as we read the statute and the decisions of the courts, she is entitled to an allowance of some amount by way of alimony.

Reversed and remanded.

WILLIAMS, J, concurs.