Dye v. Dye

• Decision Date: 08 March 1897
• Parties: DYE v. DYE.
• Court: Colorado Court of Appeals

48 P. 313

9 Colo.App. 320

DYE v. DYE.

Court of Appeals of Colorado

March 8, 1897

Appeal from district court, Arapahoe county.

Action by Bessie H. Dye against Oliver W. Dye for separate maintenance. From a judgment awarding plaintiff temporary alimony, counsel fees, etc., defendant appeals. Affirmed.

Daniel Prescott, for appellant.

Thomas Macon, for appellee.

BISSELL J.

In 1894, Mrs. Dye filed a complaint against her husband, the appellant, Oliver W., wherein she alleged nonsupport, and sought to obtain relief in the way of separate maintenance. By amendment subsequently filed, she sought ancillary relief against both her husband and other parties on the apparent basis of a transfer of the equity in the only property which the appellant owned, and on the rent of which she was entirely dependent for support. After the action was commenced, and in January, 1895, Mrs. Dye filed a petition wherein she sought temporary alimony until the determination of the suit, and the payment of counsel fees to enable her to prosecute her action. She set up the fact of the commencement of the suit, the grounds on which the suit was based, her destitution, and her husband's possession of an estate ample to entitle her to this relief. Issue was taken on this petition by a general denial of its allegations, and proof was produced by both parties. It transpired that the appellant, Dye, was in receipt of an annual income of $2,500, payable quarterly. On the testimony the court ordered Dye to pay his wife $50 a month alimony and $100 counsel fees and $25 court expenses. The order provided the times of payment. From this judgment, awarding alimony and fixing the amount of it, the appellant has prosecuted this appeal.

The principal question suggested by the brief of appellant's counsel is the impossibility to maintain a suit in equity to compel the payment of alimony where separate maintenance is the only relief prayed, and since the original complaint cannot be maintained, the petition for alimony would not support these proceedings, nor the judgment which was entered. Some question is made in regard to the sufficiency of the petition, and also respecting a statute which has been passed relative to the bringing of quasi criminal proceedings against a husband who fails to support his family. We are of the opinion that neither of these contentions are well based. The petition is amply sufficient. It contains all the suggestions which the practice requires in order to permit the court to hear the matter and make such order as will be equitable. The courts have adjudged proceedings of this character sufficient so long as there is enough in the record to show that there was a proper basis on which the court could predicate its action. A similar question was presented to this court, and decided at the May term in 1896. Whelen v. Whelen (Colo.App.) 45 P....