Finnegan v. Arnold

• Decision Date: 27 September 1949
• Docket Number: (No. 10187)
• Citation: 133 W.Va. 221
• Court: West Virginia Supreme Court
• Parties: Charles Finnegan v. Lloyd Arnold, Judge of the Circuit Court of MarshallCounty, Etc., Et Al.

133 W.Va. 221

Charles Finnegan

v. Lloyd Arnold, Judge of the Circuit Court of MarshallCounty, Etc., Et Al.

(No. 10187)

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1949.

Decided September 27, 1949.

Appeal

Under Code, 48-2-13, an appeal and supersedeas from a divorce decree does not deprive the court granting the decree of its jurisdiction after proper notice and hearing under that section to award a wife a reasonable amount to provide her maintenance and "suit money" pending the appeal.

Charles Finnegan petitioned for a writ of prohibition to prevent the Circuit Court, Marshall County, Lloyd Arnold, J., from enforcing the court's order granting petitioner's divorced wife maintenance and traveling expenses after petitioner had been awarded an appeal and supersedeas from the divorce decree.

Writ refused.

Lovins, Judge, not participating. Martin Brown, for petitioner. Charles L. Ihlenfeld, for defendants.

Kenna, Judge:

In a divorce proceeding pending in the Circuit Court of Marshall County Dorthy Finnegan on February 14, 1949, was granted a decree from Charles Finnegan, the defendant, the custody of their only child and one hundred dollars a month alimony. On May 9, 1949, this Court awarded Charles Finnegan an appeal and supersedeas from that decree. On May 17, 1949, the required supersedeas bond was properly lodged. After due notice on May 28, 1949, Dorthy Finnegan filed a written petition before the Circuit Judge of Marshall County praying for an order requiring Charles Finnegan to advance a reasonable sum to pay her attorney for his services in this Court, a reasonable amount for the preparation and printing of her brief, a reasonable amount to pay her traveling expenses between Moundsville and Wheeling to her attorney's office, and maintenance for her during the pendency of the appeal. Upon the hearing upon the petition Charles Finnegan appeared specially, contending that subsequent to an appeal and supersedeas the Circuit Court of Marshall County was deprived of jurisdiction to consider the matters presented by petitioner. His contention was overruled by the Circuit Judge of Marshall County and, after hearing, an order was entered awarding the petitioner one hundred and fifty dollars as an attorney's fee upon appeal, fifty dollars to pay the expense of printing her brief, twenty-five dollars traveling expenses, and sixty dollars a month for her maintenance pending the appeal. The respondent paid one hundred and fifty dollars attorney's fee and the fifty dollars allowed for the expense of printing briefs, commonly called "suit money." He declined to pay the monthly amount allowed for maintenance and the amount allowed petitioner for traveling expenses, filed his petition in this Court for a writ of prohibition to prevent the Circuit Court of Marshall County from enforcing its order on the theory that it lacked jurisdiction after the granting of an appeal and supersedeas to award petitioner either maintenance or traveling expenses.

If we correctly understand the position taken by the husband upon this application for prohibition it is that Code, 48-2-13, contains no provision which authorizes the trial court to provide for the maintenance of the woman after an appeal and supersedeas to a decree of divorce is perfected. Further, that upon the perfection of a supersedeas of a decree awarding a monthly payment of alimony it would be a mere circumvention of the effect of the supersedeas to permit the same judge to say to the same person against whom he had decreed...