^ALLOWANCE OF ALIMONY TO A WIFE MANDATORY, WHEN.

Court of Appeals for Lucas County.

#### Jessamine M. McGinnis et al v. David W. McGinnis.

Decided, January 28, 1918.

*Divorce and Alimony*— Where *a Divorce is Granted Wife Alimony Must he Allowed*— Amount *of Allowance Where Both are Darning Salaries.*

1. While the duty to allow alimony to the wife is mandatory under • the provisions of Sections 11990 and 11991 G. C., when a divorce is granted to her, yet those sections require the'trial court to allow only such alimony as is reasonable and to. make the same payable in such manner as is equitable.

2. Where the parties are about 40 years of age, in good health, have no children, have lived together three years, and the wife has property of the value of $2,300 and is in receipt of a salary of $98 per month for ten months of the year, and the husband has no property and receives a salary of $100 per month, a judgment refusing the wife alimony other than $300 already paid her as temporary alimony, and $50 to be paid as an attorney fee to her counsel will not be reversed.

*589
      *O. S. Br-wmbach,*for plaintiff in error.

*Marshall & Fraser,*contra.

Richards, J.

This is a proceeding in error to the' court of common pleas to reverse a judgment of that court relative to alimony rendered on granting a divorce to the plaintiff. The parties to this aeT tion were married on December 20, 1913, and the wife commenced an action for alimony alone on May 18,1916. Thereafter the husband filed a cross-petition for divorce, whereupon the plaintiff filed an amended petition asking for both cliveree and alimony.

During the pendency of the action the court of common pleas allowed to the plaintiff temporary alimony at the rate of $30 per month and under this order she has received some $300 by way of temporary alimony. On the hearing of the case in the court of common pleas, a divorce was granted to the plaintiff, based on the ground of extreme cruelty, the decree finding that the plaintiff was entitled to recover no alimony other than $50 which was therein allowed as attorney’s fees for her counsel. The court adjudged that the husband pay this sum and also the costs of the action. It is to reverse this refusal to allow alimony, other than as stated,, that she brings this proceeding in error.

The bill of exceptions discloses that the husband has no property, but is in receipt of a salary of $100 per month as a mail carrier in the city of Toledo, and that the wife is a teacher in the public schools of that city, receiving a salary of $98 per month for ten months in the year. She also has property which she received from her mother, amounting in value to about $2,300, a part of which is now in cash and the remainder represented by a mortgage held by her. Each of the parties is about forty years of age and apparently in good health, and they have no children. Under these, circumstances it is contended that the court erred in refusing to award to her a substantial sum by way of alimony, and it is insisted that the language of the statute is mandatory and requires the allowance of alimony. The right of the plaintiff to alimony is controlled by Sections 1199Q and 11991 G-. C. The first section requires, when a divorce is granted *590because of the husband’s aggressions, that the court shall restore to her any name she had before marriage, and allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce. The next section provides that such alimony may be allowed either in real or personal property or both, or in money, payable either in gross or installments as the court deems equitable. It will be noticed that by the terms of these statutes only such allowance is to be made as the trial court deems reasonable, having regard to the circumstances stated in the statute and that it may be allowed in such property and payable on such terms as the trial court deems equitable. The language of these sections has been held by our Supreme Court to be mandatory, but they can only be mandatory to the extent that the trial court shall make such allowance of alimony as it deems reasonable and payable out of such property and in such manner as it deems equitable. A large discretion appears to be vested in the trial court and this is, of course, a judicial discretion and subject to review by the court of appeals.

The trial judge in determining whether an allowance of permanent alimony should be made, manifestly' considered all the facts and circumstances disclosed by the record, .the duty to consider which is imposed upon him by statute. Considering the age and health of the parties, the fact of the salary received by each and that the husband had no property while the wife had the amount shown by the record, we can not see that the judgment is so manifestly against the evidence as to require a reversal nor that the action of the court was unreasonable or inequitable. The court allowed $50 as an attorney fee for plaintiff’s counsel and was, of course, advised of' the fact that some $300 had already been paid by way of temporary alimony. While the language of the sections is mandatory, these sections'do not require the allowance of alimony other than shall be found to be reasonable and equitable.

Finding no reversible error the judgment will be affirmed.

Kinkade, J., concurs; Chittenden, J., not sitting.