Lesh v. Lesh

21 App. D.C. 475 | D.C. Cir. | 1903

Mr. Justice Morris

delivered the opinion of the Court:

In this court a motion was made on behalf of the appellee to dismiss the appeal on the ground that the order in question is not an appealable order. But the motion was ordered to stand over until the final hearing of the appeal on its merits. We are of opinion that the motion is not well founded.

While on the one side it would seem that the allowance of appeal in such cases by the delay which it necessitates would tend to frustrate the purpose for which alimony pendente lite is allowed, which is to enable a wife deserted by her husband, and who, in contemplation of the common law, is ordinarily presumed to have no means of her own subject to her immediate control, to prosecute her suit to effect and to he maintained while it is in course of prosecution, yet, on the other hand, when statutes which authorize appeals are broad enough in their terms to cover orders for the payment of alimony pendente lite, there would seem to he no good or sufficient reason to exempt by judicial construction such orders from the operation of the statutes, notwithstanding that proceedings for maintenance might possibly be classed as sui generis, with proceedings for divorce and proceedings for judicial separation.

An order for the payment of alimony pendente lite, although merely an incident in all these proceedings, is in effect a final order. It is capable of being enforced by immediate execution, and, although it is revocable and may be rescinded by the court, and, although it may wholly fall by a final decision on the merits of the cause adverse to the petitioner, yet as long as it remains in effect and to the extent to which it has been enforced by payment or execution, it is an absolute finality. Money so paid cannot be recovered back. Unless, therefore, there is a right of appeal in such cases, a class of cases will be judicially established without warrant of law exempted from the operation of the statute, notwithstanding that perhaps in some cases very large sums of money might thus be transferred from one person to another.

In the statute creating this court it is provided that appeals may be taken to this court from any final order, judgment, or decree of the Supreme Court of the District of Columbia, and from all interlocutory orders of that court whereby the possession of property is changed or affected, such as orders for the appointment of receivers, granting injunctions, dissolving writs of attachment, and the like, and from any and all interlocutory orders whatever where it is made to appear to this court that it is in the interest of justice to allow such appeal (act of Congress of February 9, 1893, reproduced in the code as section 226).

As we have said, the order here appealed from, which is collateral to the main proceeding, is undoubtedly a final order. Alexander v. Alexander, 13 App. D. C. 334 It is, therefore, very plainly within the letter of the law. Is there anything which excludes it from the spirit of the law ? We fail to find anything whatever to that effect. Rather is the. spirit of the law directly to the contrary, since the evident purpose and provision of the statute is to extend the right of appeal, not only to orders technically final in their character, but to orders even of an interlocutory character, where no more is contemplated than the temporary disposition of property. If an order is appealable, where the ownership of property is only temporarily affected, as by injunction, receivership, or dissolution of attachment, much more in the policy of the law should the order be appealable which transfers money absolutely and beyond any hope of recovery.

Moreover, it is not to be ignored that the conditions have passed away or have been greatly modified which in former times rendered a deserted wife powerless without the assistance of the court to provide for her own temporary maintenance and for the prosecution of her suit. A married woman deserted by her husband may yet labor under much disability; but, as she is now universally authorized by law to hold and control her own property, and to enjoy the fruits of her own labor, without the interference of her husband, she is not so dependent as she once was in the compulsory process of a court of equity to secure for herself the temporary alleviation of her destitute condition. In the case now before us it actually appears that the petitioner owns property in her own right, which she manages and controls for herself. It may be wholly insufficient for the purpose of maintenance, but the fact that she has such property is sufficient to show the great alteration of condition to which we have referred, and which malees it all the more inexpedient to remove these orders for the payment of alimony pendente lite from the category of appealable orders.

It can be added that the great preponderance of judicial authority in our country is in favor of the allowance of appeal from orders for the allowance of alimony pendente lite. See Collins v. Collins, 71 N. Y. 269; King v. King, 38 Ohio St. 370; Blake v. Blake, 80 Ill. 523; Sellers v. Sellers, 141 Ind. 305 ; State v. Seddon, 93 Mo. 520; Glenn v. Glenn, 44 Ark. 46; Carroll v. Carroll, 48 La. Ann. 835; Sharon v. Sharon, 61 Cal. 185; Daniels v. Daniels, 9 Col. 133; Lake v. King, 16 Nev. 215; Edgerton v. Edgerton, 42 Mont. 425 ; Farber v. Farber, 64 Iowa, 362; Chappell v. Chappell, 86 Md. 532.

We think, therefore, that the appeal in this case was properly taken, and that the motion to dismiss it should Be denied.

2. But when we come to consider the case upon its merits, we fail to see how we can review the order appealed from, unless, indeed, we accede to the justice of the appellant’s contention that the court below was wholly without jurisdiction in the premises.

The allowance of alimony pendente lite is largely a matter of discretion, although, of course, of judicial discretion, and the determination of the trial court should not be interfered with lightly or without good cause. Especially should it not be interfered with where the allowance is so moderate and reasonable, and so much within the ability of the appellant to pay, as it is in this case, and where the circumstances which justified its allowance are not within the knowledge of this court as they were within the knowledge of the court below.

rue application here was made after the testimony in the cause had been taken and filed, and after a previous similar application had been refused. Presumably the present application was based to a greater or less extent upon the testimony. In fact, both parties in their affidavits filed in connection with the application refer to this testimony and to the effect of it in sustaining or disproving the charges and counter-charges of the parties. "We may well presume that, if the court below looked into the affidavits, as it purports to have done and as it necessarily did, it looked also into the testimony, which was virtually made part of the affidavits for the purposes of this application by the references thereto in the affidavits themselves. In fact, the refusal of the court to grant the alimony when it was first applied for, and its allowance of it after the testimony was taken, would tend to show very conclusively that the allowance was based upon the testimony.

Now, we have not that testimony before us. It is not made part of this record on the present appeal. It is very plain, therefore, that it would be manifestly improper for us on this appeal to disturb the order of the court below in ■awarding an allowance of alimony pendente lite.

3. But it is argued on behalf of the appellant that the court below was wholly without jurisdiction in the premises to make any allowance; and it is upon this ground that the ■argument for the appellant is mainly founded. The contention is that, by the operation of the code of law for this District, which went into effect on and after January 1, 1902, the court of equity was divested of all authority to allow alimony pendente lite and counsel fees in suits for maintenance. But we cannot accede to the justice of this contention; and we find no sufficient warrant in law for it.

Among the sections of the code contained in chapter XXII, which relates to the subject of divorce and maintenance, section 975 provides for the allowance of alimony pendente lite and counsel fees, in the discretion of the court, during the pendency of suits for divorce under the code. Section 976 provides for permanent alimony. And section 980, which relates to the maintenance of a wife, provides that “ whenever any husband shall fail or refuse to maintain his wife and minor children, if any, although able so to do, the court, on application of the wife, may decree that he shall pay her periodically such sums as would be allowed to her as permanent alimony in case of divorce for the maintenance of herself and the minor children committed to her care by the court, and the payment thereof may be enforced in the ■same manner as directed in regard to such permanent alimony.”

It is argued that this section provides, in suits for maintenance, only for permanent alimony, and not for alimony pendente lite; that there is no other provision in the code for the allowance of alimony pendente lite and counsel fees other than the provisions in regard to divorce, and that the ■effect of all this is to repeal all previous laws under which alimony pendente lite and counsel fees in suits for maintenance were allowed.

But we think that this whole contention was disposed of by the decision of this court in the case of Tolman v. Tolman, 1 App. D. C. 299, and that no change in the law has-been made by the code to warrant any modification of that decision. In fact, we regard section 980 of the code as the-enunciation in legislative and statutory form of the judicial, principles of equity announced in the case of Tolman v. Tolman. The code itself, in its “ Repeal Provisions,” chapter LX, section 1640, is careful to provide that “nothing-in the repealing clause of this code contained shall be held to affect the operation or enforcement in the District of Columbia of the common law, * * * or of the principles of equity or admiralty, * * * ” And it is plain that it was the intention of the code to enlarge, rather than to restrict, the jurisdiction of the courts of equity.

In the case of Tolman v. Tolman it is made plainly apparent that the power of courts of equity in the District of' Columbia, and in the State of Maryland, from which the-jurisprudence of this District was mainly derived, to grant-maintenance to a deserted wife in a suit instituted for that special purpose, and as incident thereto to grant alimonypendeníe lite and counsel fees, is part of the general equity jurisprudence, and not dependent for its existence upon any special statute. It is, therefore, expressly reserved out of the operation of the code by section 1640 referred to, and it would probably have been reserved without any such saving clause.

Section 980 of the code, which is relied on as repealing-a 11 previous law in regard to the allowance of alimony pendente lite, and which could be held to do so only by implication in any event, is no more than a transcript of the act of Maryland of 1111, chap. 12, sec. 14, wherein it was declared that the chancellor should have power to hear and! determine all causes for alimony (or maintenance) in as full and ample manner as such causes could be heard and’ determined by the laws of England in the ecclesiastical' courts there. But in the case of Tolman v. Tolman it was-shown that this act of Maryland was only declaratory of thepre-existing law, and nothing more, and that it did not restrict the jurisdiction of courts of equity to grant maintenance and to allow alimony pendente lite, as they bad been accustomed to do, as parts of tbis general jurisprudence. Section 980 of tbe code was not intended to bave any greater effect tban tbe act of Maryland.

We regard tbe case of Tolman v. Tolman as decisive of tbe appellant’s contention in tbe present case.

It follows that tbe order appealed from should be affirmed, with costs. The cause will be remanded to tbe Supreme Court of tbe District of Columbia for further proceedings therein according to law.

And it is so ordered. Affirmed.