55 Wash. 347 | Wash. | 1909
A writ of certiorari directed to the superior court of "King county brings to us for review an interlocutory order entered in the case of Ida L. George v. Charles E. George, now pending in King county. The trial court directed the payment of the sum of $100 suit money, and $75 per month as alimony or maintenance pending the final hearing.
The principal action is one for separate maintenance. A divorce is not sought, and it is the contention of the relator that the court had no jurisdiction to enter the order complained of. This he argues under two principal assignments, the first being that, if an action for maintenance be an incident to, and covered by, the statutes pertaining to divorce
The point — and as it seems to us the principal point — is made that a court could not make an order for maintenance and attorney’s fees pendente lite when the fact of marriage is denied. Respondent relies upon the following cases decided by this court: Kimble v. Kimble, 17 Wash. 75, 49 Pac. 216; Branscheid v. Branscheid, 27 Wash. 368, 67 Pac. 812, and Ex parte Winter, 70 Cal. 291, 11 Pac. 630. The first two cases are familiar to the bar of this state and need not be discussed, except to say that they go no further than to hold that courts have jurisdiction to decree an allowance for the permanent support and maintenance of a wife upon a proper showing of the necessity of the wife and the ability of the husband to pay, or that the parties are possessed of community property which in justice should be turned to the support of both husband and wife. The Wmter case is sustained by reference to statutes of the state of California (Civil Code, § 137), wherein it is expressly provided that a wife may begin an action for permanent support, and that the court may make an order pending the action for suit
We shall content ourselves with discussing the one question whether the court, in justice to the parties, ought to make an order pendente lite when the fact of marriage is denied. Orders requiring the payment of money pending any form of action are not favored, and should never be granted by the court unless warranted by the statute or sustained by some recognized and well-settled principle of equity. Whether a court has inherent power to make an order for alimony pending an action for maintenance, irrespective of the statute, is one upon which the cases are divided (25 Cyc. 1604), and we do not feel called upon to decide it in this action. When the fact of marriage is denied, the fact upon which the one and ultimate recovery must depend is put in issue, and it would seem that the court would have no right to anticipate the final decree and order an award of alimony upon an interlocutory proceeding. The case being independent of the divorce statutes, the court cannot, upon such denial, give to the one party or take from another upon the theory that the alleged husband has property which ought, in conscience, to be put to the uses of the one asserting herself to be a wife, or which belongs to a community composed of the two, or that the husband owes a duty of support which has been denied. The parties stand before the court, not as husband and wife, but as any other litigants contesting a
In Hite v. Hite, 124 Cal. 389, 57 Pac. 227, 71 Am. St. 82, 45 L. R. A. 793, the court said:
“If the marriage were admitted, then, upon a showing of the wife’s necessities and the faculties of the husband the allowance is almost a matter of course. It is otherwise when the marriage is denied. Then, before alimony can be allowed, the marriage must be proved, and a prima facie showing made by the wife when there is a counter showing is not sufficient. The judge should be satisfied from the entire .proof made of the fact of marriage. Unless upon that question the husband has had his day in court and a hearing, if alimony is allowed, his property is taken without due process of law. This precise question has not been considered, or even suggested, in any case to which my attention has been ■called, except in McKenna v. McKenna, 70 Ill. App. 340. It was there said that in such case — when the marriage is denied — the order cannot properly be made ‘until a hearing has been had and the court upon it finds that the relation of wife and husband exists.’ The hardships which might result from either doctrine is there very tersely stated. The learned .judge quotes from Schonwald v. Schonwald, 1 Phill. Eq. 219, to the effect that it is better when a woman makes oath of the fact of marriage to make an allowance, although the oath may turn out to be false, than that a wife may be in danger of ■starvation ‘if a brutal husband makes oath denying the marriage, which may turn out to be f§,lse.’ To which the Illinois judge replies that ‘the more accurate statement would be that it is better to compel any man to pay temporary alimony and expenses of suit to any woman who may see fit to make oath that he is her husband, however strongly he may deny the allegation, rather than allow her to be in want of money which he has.’ Whatever hardships may result, the court cannot lawfully take by final decree money from A and give it to B, whatever may be the necessities of B, when A*351 disputes the facts upon which his liability is made to depend, without a trial and a determination of the issues made.”
In Vreeland v. Vreeland, 18 N. J. Eq. 43, the chancellor met the proposition now before us for consideration in the following way:
“Where the real controversy in the suit is, as here, between the parties, whether that relation exists, or ever did exist, the order cannot be made upon the mere allegation or ex parte affidavits of the wife. Else every man might be made to pay the expenses of any woman who claimed him' as her husband, and sues him for maintenance, and to support her as long as the suit could be spun out.”
See, also, Freeman v. Freeman, 49 N. J. Eq. 102; York v. York, 34 Iowa 530; Collins v. Collins, 71 N. Y. 269.
A case most nearly in point is that of Therkelson v. Therkelsen, 35 Ore. 75, 54 Pac. 885, 57 Pac. 373. This was an action brought under a statute allowing a separate action for maintenance, and authorizing an order “after hearing the parties.” It was held that an allowance could not be made for support and counsel fees pendente lite. In discussing the remedy and the rights of the parties, the court said:
“It [the order for suit money] is not incidental, as in a suit for divorce, where the purpose is to enable the wife to litigate with her husband, but final as the sole and ultimate redress to be administered.”
Alimony or maintenance and counsel fees is not granted as a matter of course (Pringle v. Pringle, ante p. 93, 104 Pac. 135), or upon the mere allegation of marriage. Neither is the order imposed as a penalty, but to compel the performance of a duty, and must be sustained on equitable grounds, having reference to the relative situation of the parties. Here, where plaintiff submits a purported marriage certificate, identified by one who says that he is familiar with the handwriting of the officiating clergyman, she is met by a denial of the marriage and of the financial ability of the defendant to pay, as well as the allegation that plaintiff
The order of the trial court is reversed.
Rudkin, C. J., Fullerton, Gose, and Morris, JJ., concur.