Brown v. Brown

• Decision Date: 27 October 1913
• Docket Number: 748
• Citation: 22 Wyo. 92,135 P. 801
• Parties: BROWN v. BROWN
• Court: Wyoming Supreme Court

135 P. 801

22 Wyo. 92

BROWN v. BROWN

No. 748

Supreme Court of Wyoming

October 27, 1913

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMLEE, Judge.

The proceeding was brought by Ethel Brown against Robert E Brown, for separate maintenance. There was a judgment for the plaintiff and defendant brought error. Heard on motion of the defendant in error for counsel fees and temporary alimony pending the proceeding in error.

Enterline & LaFleiche, for defendant in error, in support of the motion.

It is shown that the defendant has not contributed to the support of his wife since January 22, 1912, except the sum of $ 50 and that she has been compelled since that time to support herself as well as the minor child of the parties. It seems to be uniformly held that even in the absence of a statute a wife may bring an action against her husband for separate maintenance, and that in such an action the court may, in addition to making an allowance for her support, require the husband to pay reasonable counsel fees and suit money. (Edgerton v. Edgerton, 12 Mont. 122; 29 P. 966; Cochran v. Cochran, 42 Neb. 612; 60 N.W. 942; Milliron v. Milliron, 9 S.D. 179, 68 N.W. 286; Gilpin v. Gilpin, 12 Colo. 504; 21 P. 612; Simpson v. Simpson, 91 Ia. 235, 59 N.W. 222; Finn v. Finn, 62 Ia. 482, 17 N.W. 739; Brindley v. Brindley, 118 Ala. 474, 22 A. 448; Couples v Couples, 31 Colo. 443, 72 P. 1056; Dye v. Dye, 9 Colo.App. 320, 48 P. 313; Rhoades v. Rhoades, 78 Neb. 495, 111 N.W. 122; Hoon v. Hoon, 82 Neb. 688, 118 N.W. 563).

Under Section 3937, Comp. Stat. 1910, an action may be maintained by the wife, either when the parties are living separate and apart or living together, and the husband fails and neglects to contribute to the wife's support. Therefore, it seems that a wife is entitled to support without regard to the cause of separation. It clearly appears in the case at bar that the separation was caused by the misconduct of the husband, though that we think is immaterial. She had a right to maintain the action, although considered a non-resident of the State. And in such a proceeding authorized by the statute she should be allowed a reasonable sum for counsel fees. (Bueter v. Bueter, (S. D.) 45 N.W. 208; Pollock v. Pollock, 7 S.D. 331, 64 N.W. 165). The true rule is that although the statute makes no provision for temporary alimony as an incident to an action for separate maintenance where no decree for divorce is asked, a court of equity may in a proper case compel the husband to maintain the wife and provide suit money to enable her to prosecute the action. (Livingston v. Superior Court, 117 Cal. 633, 49 P. 836; Lesh v. Lesh, 21 App. D. C. 475; Long v. Long, 78 Mo.App. 32). It has been held that this court is authorized to allow attorney's fees and temporary alimony pending a proceding in error in a divorce case. (Duxstad v. Duxstad, 16 Wyo. 396.) And the authorities seem to make no distinction between actions for divorce and suits and proceedings for separate maintenance in the allowance of temporary alimony, suit money and counsel fees.

Camplin & O'Marr, for plaintiff in error, contra.

There being no divorce action pending between the parties temporary alimony is not allowable. Our statute on the subject of support is similar to statutes in other States. The judge is given discretion by the statute (Sec. 3937, Comp. Stat. 1910) to require the husband, by order, to pay a sum necessary for the wife's support and for the support of the children of the parties, or either, but there the power of the court or judge ends. It does not include support pendente lite, counsel fees or suit money. No order in the premises can be made until after the hearing, and whatever allowance for support is to be made can only be made after a hearing and determination. If the court below has no jurisdiction to grant an order for the payment of any money in the way of support, expenses, or counsel fees, prior to determining the matter of support presented by the action, it would seem to follow that the Supreme Court cannot grant the present application. (Therkelson v. Therkelson, 54 P. 885). Had the Legislature intended otherwise it would no doubt have so provided. The jurisdiction of this court is limited to a review of the questions before the lower court. In a proceeding such as this the wife must allege and prove that the separation of the parties is without her fault, and that the husband's failure to contribute to her support has not been caused by any fault of hers. (Fowler v. Fowler, (Ore.) 49 P. 589).

A sufficient reason for the failure of the statute to provide for support pendente lite in a proceeding for separate maintenance is that courts look with disfavor upon the separation of husband and wife and will rather adopt means to encourage a reconciliation than to make orders calculated to cause a continuance of the separation. (Kusel v. Kusel, (Cal.) 81 P. 295.) The statute on the subject of an action for support without divorce provides a special proceeding and one independent of the statutes regulating divorce. (Therkelson v. Therkelson, supra; State v. Superior Court, (Wash.) 104 P. 771). The statute is in derogation of the common law and is to be strictly construed. (15 Curr. Law, 2361). The motion and application should be denied for the further reason that the issues of fact were tried, and the judgment rendered, by the court commissioner instead of the court, and in so doing the commissioner exceeded the power conferred upon the judge in the premises, as well as the power of the court itself in rendering the judgment. (Huhn v. Quinn, (Wyo.) 128 P. 514; Kusel v. Kusel, supra, Sheppard v. Sheppard, 115 P. 751; Clisby v. Clisby, 49 So. 445; Bose v. Bose, (Cal.) 111 P. 258; 134 Mo.App. 278; 114 S.W. 584; 81 P. 295).

SCOTT, CHIEF JUSTICE. BEARD, J., concurs. POTTER, J., being ill, took no part in this opinion.

OPINION

SCOTT, CHIEF JUSTICE.

The parties hereto are husband and wife and the latter brought an action in the District Court of Sheridan county against her husband for separate maintenance under the provisions of section 3937 of the Compiled Statutes of 1910, which is as follows:

"When the husband and wife are living separately, or when they are living together, but the husband failing and neglecting to contribute to the support of the wife and children, or either, and no proceeding for divorce is pending the wife may in behalf of herself or minor children, if any or either institute a proceeding by petition setting forth fully her case and upon five days' notice to the husband, if he can be served personally with notice in the state, the judge may hear the same in term or vacation, and grant such order concerning the support of the wife and children or either, as he might grant, were it based on a pending proceeding for divorce, to be enforced in the same manner, together with any remedy applicable in a court of equity, such as appointing a receiver and the like. In case the husband cannot be personally served with process within this state, but has property within...