228 N.W. 464 | S.D. | 1929
This is an appeal from an order of the circuit court modifying an order for temporary alimony and counsel fees.
It is apparent that the object of the modification of the order is to compel defendant to pay a reasonable earned fee for the services of plaintiff’s attorneys and to reimburse them for expenditures in her behalf. If the action of the court is sustained and the order enforced, the result will be to hold defendant primarily liable for the payment of his wife’s attorney’s fees and expense of litigation in a divorce action against him, without regard to the result of t'he action, his fault, or the absence of contract on his part. It amounts to saying that a wife may charge her husband for attorney fees in a divorce proceeding against him. If she can thus charge him, the charge must create a primary obligation for which an independent action will lie against him. In Sears et al. v. Swenson,
-There -being’ no- primary liability enforceable in aft independent - suit, nor as we perceive in 'any" suit, we must look to the’power of the- court to- enforce payment of such fees in the course ' of divorce' proceedings in some cases and' determine the principles and'reason governing such an allowance and the nature of the liability im’posed upon the husband to pay under such circumstances. In this state the power is prescribed- by statute, Section 163,' Rev. -Code 19x9, provides: “While an action for divorce is pending, the -court-may, in its discretion, require thé husband to pay as alimony ány money necessary to enable the wife to support herself' or her -children, or to prosecute or defend' the action.” Under this section of our Code, the allowance- of any sum- is discretionary with'the court; if allowed it is alimony, and m-ust be necessary to' enable the wife to prosecute or defend the action. After -reconciliation1 and abandonment of adivore'e suit there can be rid need’of alimony.' The wife’s rights in the property and to support'depend on'the marital status, and not on alimony allowed when that status is disrupted. '" ' '
“Alimony” has a well-recognized meaning and is the support due the wife -when separated from her husband. Support due to the wife and furnished by her husband while they are living together in the natural marriage relation is never referred to as alimony, x Words and Phrases, First, Second, and Third iSeries, under the word “alimony,” recites the definitions given by many courts, and it’may be noted the separation of the parties is essential to 'bring an allowance for support within the definition of alimony. Alimony pendente lite is of the sanie-character, although, because of its allowance before the fault of the husband can be judicially determined, it is limited to the necessity therefor,’ to be
. In the case at ;bar we cannot hold there was.any necessity. for the modified. ot;der,. even if the wife was totally destitute of property, for at the time'-of such modified-order she had abandoned her suit, was living with her husband, and presumptively was receiving the support Owing to her under' amicable marriage relations. The modified order is a new order, not a mere amendment of the original, and does not relate back to the situation as it existed at the time of granting the original. Such orders are subject to modification to fit .changed conditions, not-to reflect a. wavering judicial mind. The real object of the modification was to compel the husband to pay his wife’s attorneys. • This cannot be done indirectly where it cannot be done directly. That it cannot be done directly is settled by Sears et al v. Swenson, supra.
But respondents contend the alimony may -be allowed so long as the action is pending and that until final judgment is entered the action is pending. In a sense this is- true. It is- pending for final judgment of -dismissal, but the parties by their acts have withdrawn all issues between them and the court has lost- jurisdiction of the parties to determine any of the issues presented by the pleadings. -Reasons of public policy prevent the further litigation of the issues, and reconciliation and resumption of marital relations as effectually withdraw the case from further action by the court, except to dismiss it, as would a formal judgment of dismissal operate to terminate the case. Though in a strict legal sense the action was pending, -by the reconciliation and resumption of marital relations the court los't jurisdiction over the parties to render any judgment affecting them except a formal judgment of -dismissal to clear the record.
The order appealed from is therefore reversed, and the court is directed to -dismiss the action on its merits.'