Morton v. Morton

| Mo. | Mar 15, 1863

Dryden, Judge,

delivered the opinion of the court.

This was a suit for divorce, by the husband against the wife, in which the cause alleged was adultery. The defendant answered, traversing the allegations of the petition touching the cause for the divorce. After coming in of the answer, the court, at the instance of the defendant, ordered the plaintiff to pay to her for the temporary support and maintenance of herself and two children the sum of $41.65 per month, payable monthly, until the further order of the court, and also required him by a day fixed to furnish and pay the further sum of $100 to enable the defendant to retain counsel for her defence. The plaintiff failing to comply with the order, the court, for that cause, dismissed the suit, and the plaintiff appealed.

The only question in the case which we need consider is, whether the court had legal authority to make the allowances to the wife pendente lite; and this depends upon the proper construction of the act concerning divorce and alimony. (R. C. 1855, p. 662.) The 8th sec. of the act, and the only one bearing on the point under consideration, is as follows :

“ When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be reasonable; and when the wife is plaintiff, to order the defendant to give security for such alimony and maintenance; and, upon his neglect to give the security required of him, or upon default of himself and his secuifities, if any there be, to pay or provide such alimony and maintenance, to award an execution for the collection thereof, or to enforce the performance of the judgment or order by sequestration of property, or by such other lawful ways and means as is according to the practice of said court. The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper, and may order any reasonable sum to be paid for the support of the wife during the pendency of her application for a divorce.”

The right of the wife to alimony pendente lite, whether she stood in the position of plaintiff or defendent, was an acknowledged common law right in England, enforced there by the ecclesiastical courts, who had exclusive jurisdiction of all controversies matrimonial; and we having adopted the common law, it is likewise a common law right here, unless the common law in this respect is modified by the section of the act we have quoted. If the statute concerning divorce had been silent on the subject of alimony we would not hesitate to say that, upon common law principles, the power of the Circuit Court, succeeding to the jurisdiction of the ecclesiastical courts, was ample to order the allowances made in this case; but as the act, in giving the power to award alimony pendente lite, gives it expressly where the wife is plaintiff, it must be understood as an expression of the legislative will that the power shall be withheld where the wife is defendant. Upon any other supposition, the provisions of the act under consideration would be without meaning or operation, leaving the law just as it stood before; for we have seen that, by the common law, the right to alimony pendente lite, where the wife was plaintiff, was unquestionable. If the statute does not deprive the court of the power to give alimony pendente lite where the wife is defendant, it accomplishes nothing.

We think, therefore, the court erred in ordering the allowances and in dismissing the suit for disobedience to said order, and for this cause the judgment is reversed and the cause remanded.

The other judges concur.