Robbins v. Robbins

138 Mo. App. 211 | Mo. Ct. App. | 1909

JOHNSON, J.

— The appeal in this cause was taken by defendant from an order of the trial court overruling a motion to quash an execution issued to enforce a judgment for alimony pendente lite. The cause is presented to us on the record proper.

Plaintiff brought suit in the circuit court of Jackson county against defendant, her husband, for divorce on grounds not now important. In the petition she prayed “that the court allow plaintiff as temporary alimony and suit money . . . such sums . . . as to the court may seem proper in the premises.” Defendant filed an answer and cross petition in which he prayed that a divorce be granted him. No formal motion for suit money was filed by plaintiff nor was any interlocutory order made awarding her alimony of that character. At the hearing of the cause on its merits, the court found that defendant was the innocent and injured party and decreed that a divorce be granted him. In the decree, the court found “that the plaintiff has been put to necessary cost and expenses in the prosecution of this cause upon her part in the sum of $275,” and adjudged “that the plaintiff have and recover of the defendant the sum of $275 for the cost and expense of the prosecution of this suit upon her part and that she have execution therefor.”

The ground of defendant’s motion to quash the execution issued on this judgment is “that said pretended judgment against this defendant for the amount aforesaid was rendered at the time and as a part of the judgment in which the issues wrere found for this defendant and the said execution issued thereunder and thereupon accordingly are wholly null and void.” Defendant argues in effect that the jurisdiction of the court over the subject of allowing suit money to the wife ends with the hearing of the cause on the merits when such hearing-results in .a final adjudication that the wife is the guilty party. The statute provides: “The court may decree alimony pending the suit for divorce in all cases where the same would be just whether the wife be plaintiff or defendant and enforce such order in the manner provided by law in other cases.”

This statute superseded the rule of the Ecclesiastical courts of England which allowed the wife suit money almost- as a matter of course. Under the provision quoted, the trial court had authority pending the suit to award plaintiff suit money if in the exercise of a sound discretion it deemed her entitled to that species of relief. Since we have nothing before ns but the record proper, we must assume that the evidence heard by the court disclosed a proper cause for such allowance on a timely application therefor. Further, we should assume, if it will aid the judgment, that as plaintiff asked in her petition for suit money she afterward applied orally to the court for an adequate allowance before the trial of the suit, and that the hearing of her application was postponed to the final hearing of the whole case. Had plaintiff filed a written motion, for suit money before the final hearing, the postponement of the hearing of the motion until the trial would not have deprived the court of the authority to sustain such motion. “Though it is the usual and better course for the temporary alimony to be made at an early stage of the cause it may be made upon final hearing.” [Jeter v. Jeter, 36 Ala. 391; 2 Bish. on Marriage and Divorce, sec. 955.] Suit money may be allowed on final hearing though the wife be adjudged the guilty party. The statutory rule that “the guilty party shall forfeit all rights and claims under and by virtue of the marriage” (section 2929, R. S. 1899) precludes the allowance of permanent alimony to the offending wife, McIntire v. McIntire, 80 Mo. 470, but does not apply to the allowance of suit money. “The power of the court to order and enforce an allowance for alimony pendente lite although an adjunct of the action of divorce is an independent proceeding standing upon its own merits, and in no way dependent upon the merits of the issues in the divorce suit, or in any way affected by the final decree upon those merits.” [Adams v. Adams, 49 Mo. App. 592; Schlemmer v. Schlemmer, 107 Mo. App. 487.] Whether guilty or innocent, the wife has a right to prosecute or defend an action for divorce and since the husband usually holds the purse strings, he must furnish her the means of attack or defense else she often would be left in a helpless and defenseless condition. Since we find the court had the power to allow suit money on a proper application therefor, it remains to be seen if proper application was made. The petition contained a formal application for suit money. This was a sufficient foundation for the order and we know of no rule of pleading to the contrary. As we observed before, we shall assume that plaintiff orally called the attention of the court to her application before the day of the trial, but if she did not, we think her oral application must have been proffered at the trial and was timely. The statute says that such application may be made at any time “pending suit.” A suit is pending until a final judgment is rendered. (7 Words and Phrases, 5277.) The decree shows on its face that the cause was pending when the allowance was made.

The judgment is affirmed.

All concur.