Lambert v. Lambert

109 Mo. App. 19 | Mo. Ct. App. | 1904

REYBURN, J.

In this, a divorce proceeding by the husband against the wife, wherein the latter by cross-bill asked counter relief, and before the issues had been joined and the case prepared for trial of the merits, the court heard defendant’s motion for suit money and maintenance pendente lite and allowed $500 for counsel fees and $75 for her support. The testimony was confused, but from defendant’s reluctant admissions, and her pass book with the bank with which she kept an account, it is sufficiently established that she was owner of considerable separate estate, consisting of a dwelling, her place of residence, worth $7,500, and other improved realty in the city of St. Louis, producing about $700 gross income annually; that she was holder of $22,500 of notes secured by deeds of trust, also of $6,000 in bonds, producing an income of six per cent per annum, all the foregoing realty and personalty being unencxxmbered, and that she was also intex-ested to extent of one-half in a mortgage indebtedness of $15,-000 which, however, was hypothecated to secure a loan of $6,000. Originally at common law allowances pendente lite were made in favor of the wife in divorce proceedings on the ground, that as the husband acquired by vix'tue of his marital rights, complete control over the property owned by the wife at the time of marriage or acquired by her during coverture, unless the court required the husband to furnish her with the means of prosecuting her own action or defend against an action brought by him in such proceedings, she would be defenceless and destitute. But as the law respecting the dominion and interest of the husband in the wife’s property and her control of her own estate became modified and, indeed, revolutionized, the reason-for the common- law rule no longer continued, and the absolute right of the wife to an allowance pendente lite in advance of trial ceased, and the ancient rule has been relaxed and abandoned in this and other jurisdictions, and the modern principle substituted, that the facts that the wife was without means of protection and urn-able to properly appear in an action and maintain herself during its pendency, were essential to authorize the court to award temporary alimony, and when it is made to appear that the wife has adequate property in her own right, independent of her husband to suitably provide for her own support and the prosecution or defense of the divorce action, such burdens should not be cast upon the husband. This doctrine, that the wife is not now of absolute right entitled to temporary alimony, independent of the consideration that she has abundant and sufficient property of her own, is just and consonant with sound reason and has been decisively passed upon by this court. Penningroth v. Penningroth, 71 Mo. App. 438; see also 2 Bishop, Marriage and Divorce, sec. 831, 930; Collins v. Collins, 80 N. Y. 12; Rawson v. Bawson, 37 Ill. App. 491; Porter v. Porter, 41 Miss. 116; Westerfield v. Westerfield, 36 N. J. Eq. 195. It is manifest that the defendant has in her own right abundant resources and an independent income therefrom ample to afford comfortable support and to enable her to defray the legal expense incident to the proper assertion of her rights in the proceeding instituted by her husband against her for divorce, and no necessity exists why she should have aid from her husband for such purpose.

The bill of exceptions indicated that within three days after order and judgment on a day in April, 1904, not specified, plaintiff filed motion for a new trial, and concluding the bill set forth as its date the twelfth day of May, 1904; the complete transcript before this court shows that the order awarding alimony was made on the fifth of April, 1904, the motion for new trial filed on the sixth of April, 1904, and the bill of exceptions was presented, signed and filed on the twelfth of May, 1904. This court will take judicial cognizance of the return terms of the circuit court of the eity of St. Louis, and that the record thus inferenlially, hut sufficiently, disclosed that the motion for new trial, which was overruled April 30, 1904, the filing of the hill of exceptions 'and the appeal on the same date were proceedings transpiring at the April term of court. Although the hill of exceptions does not specify the precise date on which the motion for new trial was filed, this omission is supplied hy the record and the general recital was sufficient. Young v. Dawney, 150 Mo. 317, 51 S. W. 751; Duff v. Neilson, 90 Mo. 93, 2 S. W. 222.

The judgment is reversed and the cause remanded with direction to deny and overrule the application.

All concur.