87 Wash. 520 | Wash. | 1915
The appellant, Hubbell C. Robinson, and the' respondent, Maude Robinson, are husband and wife, having been married in California on August 31, 1912. In June, 1914, the respondent commenced an action in the superior court for King county, where both parties then resided, seeking a decree awarding her separate maintenance, attorney’s fees and costs, and an order to protect her in enforcing the decree. On June 19, the court, upon motion of the respondent, entered an order directing the appellant to appear
This appeal presents the single question of whether a superior court of this state may, in an action by a wife against her husband for separate maintenance, grant to the wife alimony and suit money pendente lite, when the husband, in defense of the application, relies upon an agreement entered into between himself and wife by which she agrees to release him from all claim to support and to his separate property and the property of the community.
The appellant argues that the situation presented is analogous to one where the fact of the marriage is denied, in which cases we have adopted the doctrine that alimony pending the determination of the action cannot be granted. State ex rel. Lloyd v. Superior Court, 55 Wash. 347, 104 Pac. 771, 35 L. R. A. (N. S.) 387. In those cases, he argues, the husband alleges the existence of a condition—lack of the marriage relation, which, if proven by him, negatives any liability on his part to contribute to the support of the plaintiff, while in this action he sets up facts which, if proved, release him from any liability; so that in either case, if he can maintain his defense in the principal action, his nonliability is established, which nonliability dates back to the institution of the action. Logically, then, he should not be compelled to support the plaintiff while prosecuting an action against him, when the foundation of her right to institute the action is denied.
The court has not, as asserted by the appellant, passed upon the validity of his defense in this ancillary proceeding, but has only enabled the respondent to have the validity of that defense determined. The situation is analogous to any suit for separate maintenance in which the husband has a sufficient defense to the action by his wife. In any such action, where suit mony or temporary alimony has been allowed the wife and final judgment is given to the husband, the husband has been compelled to furnish the wife with means to prosecute an unmeritorious action. The nature of the husband’s defense to the principal action is of no concern to the court in passing upon the application for temporary alimony and suit money, as he cannot determine its validity prior to the trial of the principal action. The admission of the marriage relation establishes the husband’s duty to provide
It remains but to ascertain whether our conclusion is supported by authority as well as reason. The principal authorities cited by the appellant are cases where the fact of marriage was in issue. We have shown them to be inapplicable. Curtis v. Curtis, 29 Misc. Rep. 257, 61 N. Y. Supp. 59, was not an application for alimony pendente lite. The court there, in the principal action, denied alimony and attorney’s fee, just as the court in this case may upon final determination deny separate maintenance and attorney’s fee, if the facts do not warrant that decree. In Grube v. Grube, 65 App. Div. 239, 72 N. Y. Supp. 529, a valid separation agreement was in force. The allowance was not sought for the purpose of contesting its validity. The question here involved does not appear to have been often before the courts; but the few decisions we have found bear us out in our conclusion, the tendency being altogether in support of the reasons advanced in this opinion. Hawley v. Hawley, 95 App. Div. 274, 88 N. Y. Supp. 606; Carroll v. Carroll, 68 Mo. App. 190.
Judgment affirmed.