141 Ind. 367 | Ind. | 1895
This is an appeal from an interlocutory order entered in the trial court against appellant, requiring him to pay into court the sum of $255.40, al
The appellant has assigned errors upon the action of the court in refusing to strike out appellee’s application for said allowance, and in overruling his motion to set aside the order allowing appellee said sum of money.
In behalf of appellee, cross-errors have been assigned by her counsel, whereby it is sought to have this court review certain decisions adverse to appellee made by the lower court in the main action.
The record discloses the following facts, which are all that we deem necessary to state, relative to the principal questions involved in this appeal: On May 2, 1893, appellee filed her complaint for a divorce, upon the alleged cause of extreme cruel treatment by appellant. She then made an application to the court under section 1042, R. S. 1881, and section 1054, R. S. 1894, for an order for an allowance of money “to insure her an efficient preparation of her case, and a fair and impartial trial thereof. ” This application was supported by affidavits showing, among other things, that she was destitute of means to prosecute her action, and to support herself and children during its pendency. It also was made to appear that the appellant was preparing to make a vigorous defense to the action; that he had employed four able and eminent attorneys to manage his said defense, and that appellant would, upon the trial, make an effort to assail the character of appellee for chastity, and that it would be necessary for her to have in attendance at the trial a large number of witnesses. Appellant appeared and resisted this application, and filed counter affidavits.
It was further made to appear, from affidavits filed and considered by the court, that appellant was a man of considerable means, the owner of property, real and
On the next following judicial day of said term, appellee renewed her motion to have the ¡judgment theretofore rendered set aside, and filed affidavits in support of the said motion, and in support of her claim for an additional allowance.
The court sustained this last [motion, and vacated the judgment, and ordered that the cause stand upon the finding for’ the defendant until the further order of the court, and then proceeded to hear appellee’s application for the last additional allowance upon the affidavits and evidence before it, and upon said hearing awarded appellee $255.40, and ordered that the same be paid appellee by appellant within ten days, and to be in full for her attorney’s fees, and expenses. To this order appellant excepted, and moved to set the same aside, which motion was overruled and an exception reserved, appeal was prayed, bond filed, also bills of exceptions bringing into the record the several affidavits and orders of court. After making this last order for the allowance in question, and after the appellee had filed her motion for a new trial, and before any action had been taken thereon, the court rendered judgment upon its finding, denying the prayer of appellee for a divorce, and in favor of appellant for cost. It is the order of the court making this last allowance for $255.40 of which appellant complains, and which order he seeks to have reversed in this court. The contentions of the learned
In behalf of appellee, her learned counsel contend and say that they do not claim that the court attempted to exercise any power granted by the second clause of the section last cited; that all of the orders for allowances, including the one from which this appeal is prosecuted, were made*by the court by virtue of the discretionary power granted to it under and by the first clause of this section. Their contentions are that the court had the right and the power, under the law, to make from time to time during the pendency of the action, upon a proper showing, such allowance of money as would insure an efficient preparation of her ease, and a fair and impartial trial thereof; that the court in the exercise of its discretionary power did pursue this course upon a proper showing by appellee, and accounting by her for the expenditure of the partial allowances; that
The affidavit of Ballou, filed in support of the motion to set aside the judgment, sets forth the following facts:
“Otis L. Ballou, being duly sworn, says that he is one of the attorneys for the plaintiff in this cause; that he has acted as one of her counsel from the beginning of the case until the close of the argument on last Thursday evening, and when the court announced its finding in the case he notified the court that the plaintiff would make some motions in the case, and understood the court to state, in answer, that there would be an opportunity to do so; that the court announced its finding and at once the court adjourned, and affiant says that he was surprised to find on the following morning, at the time of calling court, that a judgment had been entered in the case and a record made thereof; that on the Saturday previous the court, at the time of making an allowance to the plaintiff, ruled that he would make an order for an allowance to the plaintiff, in any event of this suit, for
It is evident that if the action of the court below in making the order and in awarding the allowance complained of can be sustained, it must be held that the court was exercising the discretionary power granted to it by the first clause of section 1042, R. S. 1881, and 1054, R. S. 1894, supra, which reads as follows: “Pending a petition for divorce the court or the judge thereof in vacation may make * * *” such orders relative to the expenses of such suit as will insure to the “wife an efficient preparation of her case and a fair an impartial trial thereof.”
The determination of the questions presented and involved in the appeal requires an interpretation of the above clause. This provision of the statute invests the court with discretionary powers in an action for a divorce in making interlocutory orders during the pendency of the action against the husband in favor of the wife for a temporary allowance of what is generally denominated in law as “suit money.” The object and
1st. That thereby she may be insured an efficient preparation of her case for trial.
2d. To insure her a fair and impartial trial of the issues involved.
Natural justice and the policy of the law alike demand that in actions between husband and wife for a divorce, the latter, who by reason of her sex and experience in life is generally the weaker and more helpless party in the contest, shall have equal facilities with the husband for presenting to the court her side of the cause. Therefore, in the event it is shown that she is without the necessary means to prepare for and secure a fair trial in the action, while upon the other side the husband is possessed of sufficient means or property to supply this need of the wife, the law, through the agency of the court, compels him to furnish to her such an amount as at least in that respect will render her his equal in the suit. See Bishop Marriage and Divorce, volume 2, section 387.
This is a wise and humane provision of the law, and upon the trial court is enjoined the duty to carefully and properly exercise the discretionary powers thereby granted.
The law does not contemplate that the husband shall be oppressed by the allowance, neither does it intend that where his means are ample the court shall weigh the amount awarded in “the scales of an apothecary.” The statute means and intends a sum sufficient to insure an efficient preparation and a fair trial. And what is sufficient for the wife to obtain these results the
If the trial court abuses or unduly exercises the powers granted to it by this statute, this court on appeal will review and correct the wrong or injury done. But before we are justified in interfering with the court’s order in such cases, the complaining party must affirmatively show that there was an abuse of this discretion, and that the same was prejudicial to the party appealing. The court below was justified, upon a proper showing, if it became necessary, to make additional allowances during the progress of the action.
In Hedrick v. Hedrick, 28 Ind. 291, this court, on page 293 of the opinion, said: “It was in the power of the court to compel the husband to pay to the wife during the progress of the cause such sums as were necessary for her defense.”
It is in the power of the court, under the clause cited, to make the allowance and require the payment thereof, either before or after the expenses are incurred. See Courtney v. Courtney, 4 Ind. App. 221.
The appellant contends that the court erred in setting aside the judgment over his objections. But as the proceedings were yet in fieri, if the court was satisfied from the faf ,s set forth in the affidavit of Ballou, that it had inady rtently rendered its final judgment, it had full powe to vacate the same. Burnside v. Ennis, 43 Ind. 411; Chicago, etc., R. W. Co. v. Johnston, 89 Ind. 88.
Having this power, we can not hold, under the facts and circumstances, that the court erred in exercising it. "Was the order of the court in controversy made during the pending of the petition within the meaning of the letter and the spirit of the statute? The words “pending a petition for a divorce,” as employed in the statute, must be construed to mean that period of time intervening be
While it is true that the court had, at the time the order for the last allowance was made, found against the appellee, upon her petition for divorce, still that did not deprive the court of the power or right to make the allowance in controversy for the wife’s expenses, including her attorney’s fees incurred pending the action. As the order must be affirmed, we do not deem it necessary to consider the questions arising out of the rulings of the court in the main action which appellee seeks to present by her cross-assignment of errors.
Finding no available error in the record, the order is affirmed at appellant’s cost.