The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-11-23
GEAR IS
REVERSED
Award Of $4,000
AIimony Set
Aside.
DECISION IN
NOBREGGA CASE
GaIbraith Writes Opinion Which
is Concurred in by Little
and Perry.

Judge Gear was reversed by tn
Supreme Court yesterday in his allow
ance of half of an estate of $4,000 il
a lump sum to Libano de Nobregga il
her divorce suit against SyIvano d
Nobregga.
The Supreme Court in an opinion
written by Justice Galbraith, concurreC
in by Perry and Judge Little, circui
Judge, holds that Gear erred in not only
his division of the real estate but alsC
in the allowance of temporary alimony
to a woman, who Is not in destitute cir
cumstances. A concurrent opinion 1:
written by Justice Perry in which he
differs with the majority opinion only
as to one or two minor questions.
The pith of the ruling is contained in
the syllabus which reads as follows:
Under Section 1943 Civil Laws, author
| izing the Circuit Court, upon granting a
divorce for the adultery of the husband,
etc, to make such further order or de-
cree against the defendant, compelling
him to provide such suitable al
lowance for the wife, for her support as
the court shall deem just and reasona-
ble," the court may make such
allowance in gross.
The court has no power under this stat
ute to order a division of the husbands
real estate and to vest title to a part
thereof in the wife.
A wife who owns in her own right real
estate of the value of $500 or $4,000 is
not IN destitute circumstances" as pro-
yided in Section 1888, Civil Laws, and an
allowance to her of temporary alimony
cannot be sustained.
This case was decided but short
time ago by Judge Gear. The evidence
showed that the defendant was living
in open adultery with another woman
and he was severely censured by the
court, in the decree, allowing the di-
vorce. and granting the wife half of
the estate of her husband.
The Supreme Court holds In It's opin-
lon that the fact that libellee express
ed willingness to pay alimony in land
rather than money certainly cannot
estop him from contesting the power
of the court to compel him to give one
half of his land
Regarding the allowance of a lump
sum as alimony the court says: mo
good reason has been suggested nor
does any appear to the court on it's
our statute the court could not make
an allowance to the wife of a gross
sum as alimony or in lieu thereof"
In regard to the action of the court
in dividing the estate the opinion reads:
We have heretofore found that under
the evidence of the case, the decree can
not be sustained, on the theory of the |
consent of the parties, and we now con-
clude that the court had no power under |
the statute to, order a division of the real |
estate.
The trial court was IN error in the de- |
cision in finding that the real property in |
the name of the libellant should be di- |
vided and one-half conveyed to the libel |
lee. Under Section 1915, Civil Laws, on !
The entry of the decree of divorce the |
cal estate owned by the wife became |
her sole and absolute property" The !
court was also in error in making the |
order for the payment of $500 per week
as temporary alimony. This order can
only be sustained on the theory that the |
ibellant was in destitute circum-
stances" (Section 1898, Civil Laws) The
court found that the libellee owns in fee |
real estate of the value of $500 or $4,000. |
Such a person cannot be said TO be in |
destitute circumstances" and unable to !
support herself pending the litigation in /
this case.
The order of the Supreme Court is: |
The exceptions are sustained and the !
decree allowing temporary alimony and |
dividing the real estate Is reversed and |
the cause remanded to the Circuit |
Court with directions TO make to libel |
liant such suitable allowance as the |
court shall deem just and reasonable, !
and for such further proceedings, con- |
sistent with the foregoing opinion as
may be necessary"
Judge Perry says; Il concur in the |
conclusion that the court below was |
without authority, whether derived |
from statute, from the alleged stipuia- |
ton or consent Of parties, or other |
wise. to decree a division of the real |
estate owned by the libelIee or the con- |
veyance by the libellee to the libellant |
Of a part Of such real estate, and am |
IF the opinion for this reason that the |
decree entered must be reversed and |