101 Ark. 86 | Ark. | 1911
Appellant, John F. Stewart, in December, 1910, sued his wife, the appellee, Sarah G. Stewart, in the chancery court of Pulaski County, Arkansas, for a divorce, on the alleged ground of wilful desertion, and on February 17, 1911, the court rendered a decree in accordance with the prayer of the complaint.
Appellee resided at Topeka, Kansas, and the decree was based upon constructive service. In July, 1911, appellee filed a petition in the chancery court to have said decree annulled on the alleged ground that it was obtained by fraud, and she also asked for an allowance for maintenance and attorney’s fees, etc., during the pendency of the proceedings.
The court made an order directing appellant to pay appellee an allowance of $25 per month during the pendency of the proceedings, also $50 for attorney’s fees and $15 for other expenses of suit. From this order of allowance an appeal has been prosecuted.
It is insisted, in the first place, that the court could not make an allowance for temporary alimony, etc., without first setting aside the decree for divorce. Our statute provides that “during the pendency of an action for divorce or alimony, the' court may allow the wife maintenance and a reasonable fee for her attorneys. ” Kirby’s Digest, § 2679. We think it is clearly within the spirit of the statute to treat the petition to set aside the divorce decree on the ground of fraud as being during the pendency of the action for divorce, so far as relates to the power of the court to make an allowance for maintenance and expenses of the litigation. The manifest purpose of the statute is to provide for the wife’s maintenance so long as the status of the parties is in litigation, and while proceedings are pending to set aside the divorce decree on account of fraud the pendency of the litigation continues. Learned counsel for appellant relies upon Golden v. Golden, 102 Ala. 353, as sustaining his contention that the court should not have made the allowance. In that case, however, it appears that the wife filed a petition to cancel the divorce decree and to obtain alimony, and the court refused to set aside the decree, but made a permanent allowance as alimony, and the Supreme Court of Alabama held that it was error to do so. That decision was clearly correct, because when the court refused to set aside the divorce decree the litigation ended, and no allowance for alimony should have been made. In the present case, however, the chancery court did not decline to set aside the divorce decree, and the proceeding is still pending there, but the court simply made a temporary allowance for the wife’s maintenance and for her expenses of the litigation during the pendency of the proceedings. We are of the opinion that it was within the province of the court to do that, and that it falls within the terms of our statute which authorizes it.
It is next insisted that appellee’s petition does not state sufficient grounds for setting aside the decree, and that for that reason the chancellor erred in entertaining it and in making the temporary allowance. It is alleged in the petition that appellee and appellant resided together at Topeka, Kansas, that appellant came to Arkansas and left appellee in Topeka, she being an invalid and confined to her bed, and that her condition has been such that she has never been able to come to Arkansas to join her husband. She denied that she ever deserted appellant, and alleged that the testimony upon which the divorce decree was secured was false. She also alleged that she continued to reside at the place where her husband left her in the year 1906, and that he knew her address at the time the action for divorce was instituted, but that she was not notified of the pendency of the action, and did not hear of it until some time after the decree had been granted. The report of the attorney appointed by the court for the nonresident defendant (appellee) recites that “he has been unable to learn the present location of said Sarah Stewart, defendant, and therefore has been unable to notify her of the pendency of this suit. ”
The introduction of false testimony was not sufficient to warrant the court in setting aside the decree on account of fraud in its procurement.
The other allegation is, however, sufficient to warrant the court in finding that appellant connived at the suppression of information of the pendency of the action. It appears, from the allegations of the petition and the record in the case, that, though appellant well knew of appellee’s address in Topeka and of her ignorance of the pendency of the suit, he failed to impart this information to the attorney appointed by the court and rested upon the latter’s report that he had been unable to ascertain appellee’s whereabouts so as to notify her. This, if true, was equivalent to suppressing information to which ap-. pellee was entitled. It was appellant’s duty to the court to see that his wife was notified of the pendency of the suit if he was aware of her situation. Appellant’s conduct, we think, if established as set forth in the petition, amounted to such fraud as would justify the court in setting aside the decree. Womack v. Womack, 73 Ark. 281; Johnson v. Coleman, 23 Wis. 452.
It may be that the allegations of the petition lack certainty and definiteness in failing to state specifically that appellant faied to give information of his wife’s whereabouts to the attorney appointed by the court; but the petition can be amended in that respect. In its present condition we are of the opinion that, in the absence of a motion to make more definite and certain, it states, in an imperfect manner, grounds for setting aside the decree.
We can not see that the chancellor was in-error in making an allowance to appellee during the pendency of the proceedings, and the decree is therefore affirmed.
