78 Mo. App. 32 | Mo. Ct. App. | 1899
This is an appeal from an order granting temporary support to the wife during the pendency of a suit she brought against her husband for separate maintenance. In her petition in the main case plaintiff alleges marriage with the defendant some fourteen years ago, and cohabitation; that during this time a large amount of property had been accumulated by their joint efforts; but that in April, 1898, defendant drove plaintiff away from the home and has since refused to contribute anything towards her support. Plaintiff prayed the court to allow her suitable maintenance -out of said property. In his answer defendant practically confessed the abandonment, but denied there was a legal marriage — alleging that at the time the marriage ceremony
Thereupon plaintiff filed a motion ashing the court to require defendant at once to pay her a reasonable sum to employ counsel and for her support during the pendency of the litigation. "Within a reasonable time the court heard the parties on this motion, the plaintiff alone testifying, and decreed that defendant forthwith pay plaintiff for temporary maintenance the sum of $100 and on the first of each month thereafter, until the further order of the court, a further sum of $50. Erom this order defendant has appealed.
Defendant’s first contention is that the circuit court had no power or authority to grant the plaintiff wife temporary support during the continuance of the litigation between her and the husband, that such alimony can only be allowed during the pendency of a suit for divorce and as an incident thereto. It is argued that separate maintenance for an abandoned wife could not be had at common law except as incident to divorce or the like; that no such jurisdiction vested in common law courts where separate maintenance was the only relief sought. It is claimed then, that, as such separate maintenance for the wife was unknown to the common law (except in divorce proceedings) the only right thereto must be based on our statute relating to separate maintenance; and since in that no provision is made then no such right exists. More than this, it is further argued, that, since in our divorce statute temporary alimony for the wife is definitely provided for, it must be intended as denied in suit for separate maintenance.
Neither can it be presumed — because the legislature saw proper, while treating of the subject of divorce, to provide temporary alimony and while providing in another chapter for the abandoned wife’s separate maintenance no such provision was made — that it was intended to deny such temporary support in the latter. The maxim expressio unites, etc., has no application. Galland v. Galland, 38 Cal. 265; Milliron v. Milliron, 68 N. W. Rep. (S. D.) 286. In the first cited cases it is said: “The main subject-matter of the statute was the regulation of divorce; and only as incidental to the subject the statute prescribes the power of the
II. Other objections in defendant’s brief relate to the validity of the marriage between these parties. This is not the proper occasion to try that question; that more properly comes up at the final hearing of the main case. As to this interlocutory matter it is sufficient that a de facto marriage relation exists; and whether or not it was likewise de jure should more properly be left for determination later on. 2 Bishop Mar. & Div. [6 Ed.], sec. 402 et seq.; also new edition same work, sec. 924; Storke v. Storke, 99 Cal. 621; Harding v. Harding, 144 Ill. loc. cit. 595; Simpson v. Simpson, 91 Iowa, loc. cit. 239; McFarland v. McFarland, 64 Miss. 449. In his new work on Marriage, Divorce and Separation (Vol. 2, sec. 923, etc.) Mr. Bishop thus expresses the rule: “To justify an order for temporary alimony, there must have been a marriage either valid in fact or by the parties supposed to be valid, by reason whereof they have entered upon those mutual property relations which govern matrimonial cohabitation. Further than this it need not be good in law. *’ * * As the legal validity of the mariage is not essential to this preliminary order for the woman’s support, so neither are the proofs of it required to be so conclusive as on a final decree for a permanent alimony. If parties enter upon a cohabitation under a marriage which in fact is void, this reasoning shows that upon
In t.hia case the undisputed facts show that Mr. and Mrs. Long were married in due form by an officer authorized to perform the ceremony; that they continued to live and cohabit together as husband and wifefor nearlyfourteen years; that during that time large real estate interests were acquired by their joint earnings, and that the title thereto was taken to husband and wife as tenants by the entirety^ This was sufficient proof of marriage to justify the order for temporary support. The wife made a-satisfactory showing of a meritorious cause and that she was proceeding in good faith. Under all the authorities this seems to be sufficient. See authorities cited in Harding v. Harding, supra, pages 595, 596.
In relation to the amount allowed the plaintiff wife, we discover no ground whatever for defendant’s complaint. This is a matter properly left to the sound judicial discretion of the trial judge; and as we discover no abuse of such discretion, the order will not be disturbed on that account.
Judgment affirmed.