168 Iowa 353 | Iowa | 1915
The petition filed July 3, 1912, shows that the parties were married on November 16, 1911, and charges that defendant is a person of “very high and violent temper” which she does not try to control; that without cause she curses and swears at plaintiff and applies to him vile names and epithets; that she possesses a revolver and has repeatedly threatened to shoot and kill the plaintiff and that finally on June 3, 1912, she cursed the plaintiff, called him vile names, and drove him from the home and threatened to kill him, and that when thus cast out he took his team and started to find refuge at his farm in the country. Defendant took another horse, pursued and overtook plaintiff, again threatening to kill him, and that seeing her reach for her revolver he submitted to her demand and drove back to the home “to avoid further trouble and to protect his person.” On this showing he asks an absolute divorce.
Defendant appeared to the action and before answer moved for temporary alimony and suit money and by agreement of counsel the application was allowed in the sum of
Replying to the' answer plaintiff denied the same and alleges that while he has property to the amount of about $100,000.00, he is indebted to the extent of $30,000.00.
The trial court denied the divorce and on November 1, 1912, entered a decree dismissing the petition, reserving the defendant’s claim for alimony and support for further consideration, and from this decree plaintiff appealed, April 29, 1913. On February 24,1913, and before the appeal was taken, defendant filed a petition for separate maintenance and suit money, setting up substantially the same allegations made by her answer to the petition for divorce. The matter of said application and defendant’s claim for attorneys’ fees and suit money, came on for hearing before the court on May 6, 1913. Plaintiff’s objection that the matter of alimony had been adjudicated by agreement and payment of $250.00, as herein-before mentioned, having been overruled and additional evidence having been heard upon the value of attorney’s services and of the use of the house occupied by defendant, a supplemental decree was entered finding defendant entitled to the relief claimed, awarding her the use of the homestead except a specified room or office therein set apart for the storage of plaintiff’s personal effects, and requiring plaintiff to pay her $50.00 per month less any sum or sums which may be ree'eived
The appeal presents two questions for our consideration —the merits of the plaintiff’s demand for a divorce and the merits of the defendant’s claim for support money and attorneys’ fees.
That this marriage has proven an unhappy one is perfectly clear and that neither has treated the other with consideration and kindness which ought to mark the conduct of
The profane and abusive language which plaintiff claims was heaped upon him by the defendant is quite generally denied by her, though enough perhaps is admitted to add an unsavory spice to their domestic discussions whenever these became animated. It must be said, however, that in vigorousness of diatribe plaintiff was himself at least a good second, and if we may judge from their own statements neither is made of that delicate moral fibre which characterizes those whom hard words can kill. While marriage is a civil contract
We are of the opinion that the authority of the court over the allowance of alimony, suit money and attorneys’ fees was not exhausted by the original order. The original application and the order made thereon were necessarily of a preliminary or interlocutory character. A wife defendant in a divorce case is entitled to a sufficient allowance for the efficient preparation and presentation of her defense, but no more, and what is a reasonable sum for this purpose cannot ordinarily be seen or known in advance with any certainty. The plaintiff may repent his action and dismiss the proceeding in time to avoid the necessity of great labor or expense on her part in preparing a defense. She may herself conclude to make no very serious defense. The amount of labor and preparation for her defense and for the conduct of the case may prove greater or less than could reasonably have been anticipated. In short, it is only when the ease has reached or is reaching its final adjudication that the court is in position to fix the allowance with due regard to the necessities of the defense. We can see no reason, then, why the court may not at the outset grant such allowance as will enable the defendant to meet the immediate needs of her defense and in the final disposition of the case add thereto such sum as may appear just and equitable in view of all the circumstances. Such a rule works for the protection of the plaintiff
The rule we have here suggested finds support in the proposition that the court in disposing of a divorce ease may tax attorneys’ fees as costs and this implies that such taxation shall be with reference to the value of the services performed. Wilson v. Wilson, 40 Iowa 230.
It has also been expressly decided that an interlocutory allowance of attorneys’ fees is not such an adjudication of the husband’s liability that he may not be held for an additional amount if the services of counsel were reasonably worth it. Clyde v. Peavy, 74 Iowa 47.
The discussion in the opinion rendered in the cited ease is quite conclusive upon the question here raised by the plaintiff and his exception cannot be sustained.
We discover no grounds for disturbing the decree or order appealed from and they are — Affirmed.