Day v. Day

• Citation: 96 P. 431,15 Idaho 107
• Parties: AGNES LORETTA DAY, Appellant, v. EUGENE RUFUS DAY, Respondent
• Decision Date: 17 June 1908
• Court: Idaho Supreme Court

96 P. 431

15 Idaho 107

AGNES LORETTA DAY, Appellant, v. EUGENE RUFUS DAY, Respondent

Supreme Court of Idaho

June 17, 1908

DIVORCE-ALLOWANCE PENDENTE LITE.

1. Under the provisions of sec. 2472, Rev. Stat., "While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or prosecute or defend the action."

2. This statute empowers the court, during the pendency of the action, upon a proper showing made by the wife for that purpose, to compel the husband to provide her with the means necessary to enable her to prosecute or defend the action.

3. The object and purpose of alimony, pendente lite, is to assist the wife in maintaining herself until the termination of the suit, and the amount should be adequate for this purpose and be governed by the needs of the wife.

4. No uniform rule can be announced for the guidance of the court in determining the amount of alimony pendente lite, as each particular case must be decided upon the facts and circumstances as they appear from the pleadings and proofs.

5. In determining the amount of allowance, the court should take into consideration the wealth and social standing of the parties, their manner of living, the present available means of the wife, and the ability and income of the husband, her health and probable needs while the suit is pending, as well as all other circumstances which may aid the court in determining the amount necessary to maintain the wife during the suit, according to her former manner of living.

6. Where the marriage of the parties is admitted, in determining the amount of alimony the court should attempt to place each party in that position that neither should have the advantage of the other, in waging the suit or in presenting the evidence to prove or disprove the falsity of the allegations made.

7. Where the marriage is admitted, and the evidence shows that for seven months prior to the marriage the husband paid the plaintiff, who afterward became his wife, $200 monthly as an allowance, and for the month immediately preceding the marriage $500, and expended upon their wedding tour about six months $4,000, and for jewelry and clothing $3,000 between January and July after the marriage, and the further sum of $2,700 for a home for the plaintiff, and is worth $600,000, and has an income of not less than $16,600 per annum, and where the charge of the plaintiff against the defendant is extreme cruelty, denied by the defendant, and a cross-complaint is filed by the defendant against the plaintiff also charging extreme cruelty, which is denied, and such charges are made in detail so that the complaint and the answer to the cross-complaint embrace seventy pages of the printed transcript, and the answer and the cross-complaint embrace ninety pages of the transcript, said pleadings containing charges of crimination and recrimination in both the complaint and cross-complaint, the court abused its discretion in only allowing the plaintiff $800 for counsel fees, $600 for suit money and $100 per month alimony.

8. Held, under the facts stated above, that a proper and fair allowance to the plaintiff for counsel fees, pendente lite is $4,500, for suit money $2,000, and for alimony $250 per month.

(Syllabus by the court.)

APPEAL from an order of the District Court of the First Judicial District in and for the County of Shoshone. Hon. Edgar C Steele, Judge presiding.

An application for an allowance of counsel fees, suit money and alimony pendente lite. Order reversed and costs awarded to appellant.

Judgment reversed. Costs awarded to appellant.

F. C Robertson, and H. P. Knight, for Appellant.

The respondent, being a man of large means, has employed an array of the ablest counsel in the state to defend against the appellant's suit; has employed numerous detectives and other persons to be used in the preparation of his case, and has filed a cross-complaint in this action the nature of which makes it absolutely necessary for the appellant to prepare her case most thoroughly for trial. To properly prepare her case and to meet the allegations of the respondent's pleadings, as well as to sustain her own pleadings, will require a very large expenditure of money.

As to the question of alimony, the appellant is a woman who, during her married life and prior thereto, by reason of the wealth and position of the respondent, became accustomed, not only to all the comforts, but also to the luxuries of life, a woman shown by the record to be well educated and accustomed to move in the best circles of society in the community in which she lives.

The measure to be used in determining the amount of alimony, counsel fees and suit money to be allowed in cases of this kind, is not so much the bare necessities of the wife as it is the ability of the husband to make the provision.

In a case of this magnitude, involving issues which are so personal, and which it is so necessary for the appellant to meet and combat in order to protect her good name, the court should go further than bare necessities, and should be liberal enough in their allowance to permit the appellant to have all reasonable means at her command for the purpose of preparing and presenting her side of the controversy. ( Forrest v. Forrest, 25 N.Y. 501; Jones v. Jones, 2 Barb. Ch. 146; Lynde v. Lynde, 4 Sand. Ch. 373; Hammond v. Hammond, 1 Clarke's Ch. 153; Cralle v. Cralle, 84 Va. 198, 6 S.E. 12; Grundy v. Grundy, 11 Okl. 423, 68 P. 509; Cairns v. Cairns, 29 Colo. 260, 93 Am. St. Rep. 55, 68 P. 233; Hart v. Hart, 31 Colo. 333, 73 P. 35; Pleyte v. Pleyte, 25 Colo. 125, 25 P. 25; Kowalsky v. Kowalsky, 145 Cal. 394, 78 P. 877; Anderson v. Anderson, 137 Cal. 225, 69 P. 1061; Gay v. Gay, 146 Cal. 237, 79 P. 885; Lacey v. Lacey, 108 Cal. 45, 40 P. 1056; Bordeaux v. Bordeaux, 30 Mont. 36, 75 P. 524; Mitchell v. Mitchell, 39 Wash. 431, 81 P. 913; Read v. Read, 28 Utah 297, 78 P. 675; Roby v. Roby, 10 Idaho 139, 77 P. 213; Bedal v. Sake, 10 Idaho 270, 77 P. 638, 66 L. R. A. 60.)

Allowances for temporary alimony, attorneys' fees and suit money should be adequate for an efficient preparation and prosecution of the suit, and the allowance for alimony should be a reasonable amount sufficient to support and maintain the applicant according to her station in life. It should be reasonable in view of all the circumstances of the case. (14 Cyc. 757, 765; Cooper v. Cooper, 185 Ill. 163, 56 N.E. 1050.)

Natural justice and the policy of the law alike demand that in any litigation between husband and wife, they shall have equal facilities for presenting their case before the tribunal. (2 Bishop on Marriage and Divorce, sec. 976.)

Temporary alimony should be to a great extent determined by the husband's fortune, and where his income is large and his manner of living liberal, a correspondingly liberal but not extravagant amount will be allowed. (Ellis v. Ellis, 2 Weeky. Not. Cas. 49; Beers v. Beers, 4 Lanc. (Pa.) 154.)

In determining the fee to be allowed the wife's attorney in divorce, the court will look both to the pecuniary ability of the husband and the character of the services. (Gordon v. Gordon, 6 Ky. Law Rep. 439.)

The ordinary rule of temporary alimony is to leave the wife about one-fifth of the joint income, deducting, of course, the income from the wife's separate estate. This is regarded as a fair medium, though the proportion will vary according to circumstances. (Bishop on Marriage and Divorce, sec. 460; Stewart on Marriage and Divorce, sec. 388; Brown on Divorce and Alimony, 4th ed., 175; Williams v. Williams, 29 Wis. 517; Harding v. Harding, 144 Ill. 588, 32 N.E. 206, 21 L. R. A. 310.)

C. W. Beale, John H. Wourms, W. E. Borah and C. L. Heitman, for Respondent.

The wife is not entitled to an order requiring the husband to pay her a sum of money for counsel fees where counsel have agreed to render their services gratuitously. (Mudd v. Mudd, 98 Cal. 320, 33 P. 114.)

Counsel fees for past services are not necessary to enable the wife to prosecute her suit, and an allowance of them is erroneous. (Lacey v. Lacey, 108 Cal. 45, 40 P. 1056.)

The wife is not entitled to be reimbursed pendente lite at the court's discretion for moneys raised on her credit and already expended as money necessary to enable her to prosecute the action. (Lovern v. Lovern, 100 Cal. 493, 35 P. 87.)

If it appears that the suit is not instituted in good faith to secure a divorce, but merely for the purpose of collecting money from the husband, or to compel him to support her, neither alimony pendente lite nor attorneys' fees will be allowed. (14 Cyc. Law & Proc. 754 (d); Kirrigan v. Kirrigan, 15 N.J. Eq. 146; Bradford v. Bradford, 80 Miss. 467, 31 So. 963.)

No allowance of temporary alimony should be made if it appears from the record that the suit of the applicant, or the defense interposed by her, as the case may be, is without any just or reasonable foundation, so that there is no probability of her success. (14 Cyc. 753 (c); 17 Cent. Dig. 806, sec. 617; 2 Am. & Eng. Ency. of Law, 2d ed., 101; Glasser v. Glasser, 28 N.J. Eq. 22.)

The amount of money or property that the defendant may have is not a test or criterion in fixing the number of plaintiff's attorneys that shall be paid by the defendant, or the amount which they shall receive. ( Schulz v. Schulz, 128 Wis. 28, 107 N.W. 302; Rogers v. Rogers, 103 Ga. 763, 30 S.E. 659.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This is an appeal from the following order:

"It is hereby ordered that the defendant Eugene Rufus Day pay to the clerk of the district court in and for Shoshone County the sum of $ 800 attorneys' fees,...