26 S.D. 95 | S.D. | 1910
This action was brought by the plaintiff to obtain a decree of divorce from -the defendant. The trial court granted the divorce as prayed for, and also granted plaintiff a certain amount as permanent alimony. Being dissatisfied with that portion of the decree fixing the amount of alimony and the times for the payment of same, the plaintiff has appealed to this court from that portion of the decree. The appellant having presented to this court a showing that she is absolutely without means to prosecute this appeal or to support herself pending this appeal, and to the effect that the respondent is worth some $16,000, an order to show cause issued from this court requiring the respondent to show cause, if any there be,'why this court should not require him to pay appellant alimony and suit money on this appeal in such sums as to this court miglit seem equitable. Upon the return of such order the respondent did not question the staiemen-t of appellant regarding her financial condition and that of respondent, but respondent set forth certain matters which he claims show that this appeal is not brought in good faith, and the respondent also questions the jurisdiction of this court to grant the relief prayed for.
We' find nothing in the record before use that would justify this court in holding that this appeal was not taken in good faith. It is the contention of the respondent that, inasmuch as that part of the decree which granted the divorce was not appealed from, such part of the decree is a verity; that, therefore, at the time the
Respondent has cited the case of Bardin v. Bardin, 4 S. D. 305, 56 N. W. 1069, 46 Am. St. Rep. 791, in support of such contention. Such case is clearly not in point. It was there decided that before the trial court can grant alimony there must be at least a prima facie showing that the marriage relation exists. I-t is the marriage relation that is the basis or foundation of an action for divorce, and alimony and suit money are but necessary incidents to a suit based upon such relation. It is only by virtue of such relation that the wife has any claim upon the husband for support or payment of the expenses of her suit or defense, and certainly no court would be justified in .requiring a man to advance moneys to a person upon the ground that she is his wife without some showing that she is such. The relief asked for here is not based upon the ground that the appellant is the wife of respondent, but upon the ground that when this action was brought she was the wife of respondent, that the marriage relation had existed, and this fact of marriage stands conceded. It would certainly be an anomalous situation if a wife seeking a divorce and alimony should procure the decree of divorce sought and with it an unsatisfactory allowance as permanent alimony, and, desiring to have a review of the allowance for alimony, being without means to conduct such appeal, should -be compelled either to abandon her appeal, or else, in order to continue the marriage relation and through it hold her husband for the means with which to maintain her appeal, be compelled to appeal from that part of the decree granting the divorce, and then be entitled to alimony only by being reversed upon her appeal from the divorce part of the decree.
Under the decree of the trial court, respondent was to pay forthwith $400 as permanent alimony .and the further sum of $1,600 payable in four installments at future dates. None of this money has been received. The decree was granted June nth last. The respondent should at once pay $60 as alimony to August 1, 1910, and $100 suit money and $100 as attorney fees, and should further pay the 'sum of $40 per month as temporary alimony during the pendency of this appeal or until the further order of
Inasmuch as the appellant is unable to perfect the record upon this appeal until such suit money and attorney’s fees are paid, the appellant shall have 30 days after the payment of the same to serve and file her abstract and brief herein.
Let proper order issue to enforce the views of the court as expressed in the foregoing opinion.