Opinion
01-08-1908
FOOTE v. FOOTE.
Craig A. Marsh, for petitioner. Charles W. Fuller, for defendant
Bill by Mary C. W. Foote against Charles S. Foote. On motion for alimony on petition, answer, and proofs. Finding and order for petitioner.
Craig A. Marsh, for petitioner. Charles W. Fuller, for defendant
MAGIE, Oh. This petition seeks relief in two aspects: First, by a determination of the amount of alimony allowed by a previous order in the cause which remains unpaid, the defendant insisting that a credit should be given him sufficient to discharge it; and, second, for an increase in the alimony allowed. My conclusions are:
1. The alimony unpaid to the petitioner is $1,955.40. (a) The check for $70, sent to the petitioner's counsel and returned by him, is not a payment, (b) Defendant, however, is entitled to be allowed $236.15, which he paid for the board of petitioner and their children, by having it allowed in a suit brought by him against Charles G. Suffern. (c) Defendant is not entitled to be allowed anything respecting the furniture which he claimed petitioner took at the time of their separation, and for which he claims she should account. The larger part of this furniture was, by the concurring evidence of himself and his wife, a gift to her. The notion that it was a gift to be effective only in case creditors of his made a claim thereto cannot be sustained. In respect to the other part of the furniture, the evidence is conflicting; but, assuming that it belongs to defendant, he may recover possession of it, and he is not entitled to be allowed for it upon the alimony, the purpose of alimony being to furnish money for the support of wife and children.
2. I think the allowance previously made should be increased somewhat, for two reasons: (1) The children of this marriage are increasing in age and occasion greater expenditure for support and education; and (2) the defendant is in the receipt of a larger income than he was when the previous alimony was allowed. The children are both boys. The purpose of the mother is to send them to college. For this they are not yet prepared; but they are attending school in preparation for a college course. It results, in my judgment, that, while an additional amount should be allowed now, it should not be so great as might possibly be deemed proper in case they are to be educated at college. At the present time I shall fix the alimony at $25 a week; but I recognize the reasonableness of the defendant's application, not objected to by petitioner's counsel, that it should be paid monthly, instead of weekly.
An order will therefore be made fixing the amount of unpaid alimony according to the above finding, and fixing alimony for the future at the rate of $25 a week, and with a proviso that the sum may be paid at the end of every month, if defendant has settled and paid the alimony now in arrears.