The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1901-11-26
GEAR IS
REVERSED
Award Of $4,000
AIimony Set
Aside.
(From Saturdays daily

Judge Gear was reversed by the
supreme Court yesterday in his allow
arce of half of an estate of $4,000 in
a lump sum to Libano de Nobregga in
her divorce suit against Sylvano de
Nobregga.
The Supreme Court in an opinion
written by Justice Galbraith. concurred
in by Perry and Judge Little, circuit
judge. holds that Gear erred in not only
his division OF the real estate but also
in the allowance of temporary alimony
to a woman, who is not in destitute cir
cumstances. a concurrent opinion is
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 1913, Civil Laws, author
iZing the Circuit Court, upon granting Il
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
thereof in the wife.
A wife who owns in her own right real
estate of the value of 1880 or $4,000 is
not in destitute circumstances, as pro-
vided in Section 1893, Civil Laws, and an
allowance to her of temporary alimony
cannot be sustained.
This case was decided but a 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-
ion that the fact that libeliee express
ed willingness to pay alimony in land
rather than money certainly cannot
cstop 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
investigation why under the terms of
our statute the court could not make
an allowance to the wife of gross
sum as alimony or in lieu thereof"
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 libclant should be di-
Nided and half conveyed to the libel
lee. Under Section 1915, Civil Laws. on
the entry of the decree of divorce the
real 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 $3.50 per week
as temporary alimony. This order can
only be sustained on the theory that the
libelIant was in destitute circum-
stances" (Secton 1898, Civil Laws) The
court found that the libellee owns in fee
real estate of the value of $500 or $1,000.
Such 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
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
sstent with the foregoing opinion as
may be necessary"
Judge Perry says: Il concur in the
conclusion thai the court below was
without authority, whether derived
from statute, from the alleged slipula-
ton or consent of parties, or other
wise, to decree a division of the real
estate owned by the libellee or the con-
Yeyance by the libelee to the libellant
of part of such real estate, and am
of the opinion for this reason that the
decree entered must be reversed and
new trial on the question of almony
ordered"
George Davis appeared for libellant
ana j. II. De Bolt for libeilee.