This is an appeal from an order of the Cape Girardeau Court of Common Pleas denying plaintiff’s (appellant’s) motion for
Plaintiff filed her petition for divorce on December 5, 1960. On December 7, 1960, the defеndant, husband, was served with a Summons and a copy of the Petition for Divorce.
On December 20, 1960, plaintiff filed a motion in which she asked for allowancеs pendente lite. This motion was presented to the court for hearing by the plaintiff on December 29, 1960. On the last-mentioned date the trial court overruled the motion on the following ground: “ * * * it appears that the defendant was not served until December 7, 1960, and that thirty days have not elapsed since service on defendant.” Within two days thereafter plaintiff appealed from the order of the trial court overruling her motion for allowances pen-dente lite.
Following her appeal from the aforesaid order of the trial court, plaintiff called for a hearing on her petitiоn for divorce. The cause was heard on the merits and plaintiff was granted a decree of divorce.
Plaintiff in her brief states that, “This appeаl is presented for the sole purpose of clarifying the law of Missouri on the question of when an injured wife may first obtain relief of a temporary nаture in a divorce suit.”
Plaintiff says there are only two decisions in Missouri touching on the question she wishes to present, citing Schulze v. Schulze,
The Childers case dоes hold that the trial court did not have jurisdiction to hear and determine a motion for temporary alimony filed by the wife in a divorce suit be-, fore the return day of the summons served on the husband, defendant. In the Schulze case we held that the trial court had jurisdiction to hear and determine plaintiff’s motion for allowances pendente lite, after pointing out that defendant had filed a demurrer to plaintiff’s petition, before the trial court heаrd and disposed of plaintiff’s'motion for alimony pendente lite. Also,: pointing out that the motion was heard after the first day of the term at which the. defеndant was required to appear and file-, an answer or demurrer to plaintiff’s petition;, even though the cause was not triable until; the next succeeding term. We said ■ in, the Schulze case that: “We find nothing therein, or in any case that has been called ■ to our attention, which indicates that an ordеr for temporary support and maintenance may not be made by the court at any' time after the return day of the writ, when it has jurisdiction of the subject-matter, and of the person.” 251 S.W. loc. cit. 119.
We find it unnecessary to determine whether conflict exists between the two cases because there is no need to determine the correctness of the trial court’s fiction, for the obvious reason, that if plaintiff is correct in asserting the trial.court' erred in holding it had no jurisdiction to hear her motion for allowances pendente lite, any ruling or order by this court could not be carried into effеct. We have no obligation to render an advisory opinion based upon what is now a mere hypothetical situation. Harris v. Consolidated School Dist. No. 8C, Dunklin Co., Mo.,
So long as the divorce suit is pending the wife under proper circumstances is entitled to alimony and suit money and the court is empowered to decree these allowances “pending the suit for divorce;” § 452.070, supra, but such power may only be exercised during the pendency of the divorce suit. Coons v. Coons, Mo.App.,
In the case of Beckler v. Beckler,
Again, in the case of Schenberg v. Schenberg, Mo.App.,
■“Temporary allowances pendente lite cannоt be made after final decree or dismissal, either in suits for separate ¡maintenance, Smith v. Smith, Mo.App.,176 S.W.2d 647 , or divorce cases. Beckler v. Beckler,227 Mo.App. 761 ,57 S.W.2d 687 ; Coons v. Coons, Mo.App.,236 S.W. 364 ; Creasey v. Creasey,175 Mo.App. 237 ,157 S.W. 862 ; Lawlor v. Lawlor,76 Mo.App. 293 ; Watkins v. Watkins,66 Mo.App. 468 ; Friedman v. Friedman,132 Okl. 45 ,269 P. 257 ; Hengen v. Hengen,85 Or. 155 ,166 P. 525 ; Wald v. Wald,124 Iowa 183 ,99 N.W. 720 ; 27 C.J.S. Divorce § 207 e.* The reason is that the action is no longеr pending and the court has no further jurisdiction of the parties or of the subject-matter after the case is decided on the merits.” 307 S.W.2d loc. cit. 700.
Therе can be no doubt about the finality of the decree of divorce granted plaintiff in the instant case; therefore, the jurisdiction of the court оver the principal case has been lost. Schenberg v. Schenberg, supra.
Again we say, assuming without ruling, that if the trial court erred in refusing to hear and rule on plaintiff’s motion for pen-dente lite allowances, any judgment rendered now by this court could not be carried into effect.
We said in State of Missouri ex rel. Dyer v. Union Electric Company et al., Mo.App.,
“Where the right sought to be enforced has become a mere abstract right, the enforсement of which by reason of some change of circumstances since the commencement of the suit can be of no substantial or prаctical benefit to relators, the relief sought will not be awarded and -this is true even though relators would be entitled to the relief sought if the issues involved hаd not become moot. 55 C.J.S. Mandamus § 55, p. 96.”
If the trial court erred in the respects complained of by plaintiff, any order of this
The granting of the decree of divorce makes it unnecessary for this court to decide the quеstion presented by plaintiff on her appeal. The relief sought by plaintiff cannot be granted.
The fact that the cause has become moot pending the appeal is of no consequence. As we said in Hribernik v. Reorganized School District R-3, Mo.App.,
For the reasons stated, the relief sought by plaintiff cannot be granted. The appeal should be dismissed. It is so ordered.
Notes
See 27 A C.J.S. Divorce § 207b (5).