Fullhart v. Fullhart

• Decision Date: 28 November 1904
• Citation: 83 S.W. 541,109 Mo.App. 705
• Parties: OPHELIA FULLHART, Respondent, v. MARION FULLHART, Appellant
• Court: Kansas Court of Appeals

83 S.W. 541

109 Mo.App. 705

OPHELIA FULLHART, Respondent, v. MARION FULLHART, Appellant

Court of Appeals of Missouri, Kansas City

November 28, 1904

Appeal from Putnam Circuit Court.--Hon. P. C. Stepp, Judge.

AFFIRMED.

Order affirmed.

James W. Magee and T. B. Valentine for appellant.

(1) The order of the court granting alimony, in this case is a final one, and one from which an appeal will lie. State ex rel v. Sedden, 93 Mo. 520. (2) It is error to render judgment for alimony, pendente lite before the marriage has been admitted or proved. Wagoner v. Wagoner, 6 Mo.App. 572. (3) It must appear that the suit was instituted in good faith and that it is not prosecuted for the mere purpose of obtaining money from the husband. Adams v Adams, 49 Mo.App. 600. (4) The attorney must show that his client had probable cause for her suit. Isbell v Weiss, 60 Mo.App. 56. (5) Therefore where husband and wife are living together while a divorce suit is pending (as in this case) alimony in the nature of suit money can not be granted. Adams v. Adams, 49 Mo.App. 599. (6) The respondent failed to show that legal services for her were necessary: a contrary holding would lead to the absurd result of making a husband responsible for services of an attorney to wife on a groundless proceeding against himself, and that is clearly this case, the burden of proof to show probable cause is with the plaintiff, and this has not been done in this case. Isbell v. Weiss, 60 Mo.App. 56.

J. C McKinley and C. C. Fogle for respondent.

(1) Alimony includes both expenses of living and suit money and the wife is entitled to alimony and suit money as long as the litigation continues. Dawson v. Dawson, 37 Mo.App. 213. (2) Alimony to defray counsel fees may be allowed after final judgment in the cause, when the motion therefor is filed prior to the trial. Adams v. Adams, 49 Mo.App. 592. (3) The allowance of alimony in this case made by the court is sustained on an identical case in Isbell v. Weiss, 60 Mo.App. 54.

OPINION

SMITH, P. J.

On the 21st day of March, 1903, the plaintiff filed a petition for divorce in which it was alleged that defendant was guilty of such cruel and barbarous treatment as to endanger plaintiff's life--specifying in what. On the same day the plaintiff filed a motion for alimony in which it was alleged that she "had several minor children with her" and was wholly without means of support and maintenance; that the defendant was seized and possessed of real and personal property of the value of $ 30,000, wherefore she moved the court "to allow her such sum for the prosecution of her said suit for alimony, maintenance and support of her children as may be just, and for all other proper relief."

At the April term next following, evidence in support of the motion was heard by the court. It is conceded that the evidence so offered tended to support the allegations of the petition for the divorce; that the defendant was the owner of property of the value of seven or eight thousand dollars and that the plaintiff had no means of support for herself and three infant children except that of her own labor. The motion was then continued until the August term, 1903, at which latter term the plaintiff resubmitted the motion on the evidence taken at the preceding April term. The defendant at the said August term of court testified in his own behalf to the effect: "Shortly after the last April term, and long before this term of this court, plaintiff came to me and wanted me to let her come back to my house and fill her place as my wife. I told her that if she would conduct herself properly, and faithfully demean herself and perform all the duties on her part as my wife, I would agree to allow her to return, to which she readily and willingly agreed, and relying upon her promise, I restored her to myself as she had formerly been, and she became reconciled to my bed and board; and has ever since that time remained with me as my wife. I will add further, that I had always treated her with kindness and affection and performed all the duties on my part as her husband, and had never given her any cause for leaving me in the first place; and that she had never had any just cause for instituting divorce proceedings against me, all of which she admitted to be true, and said she wanted the case dismissed and has so instructed her attorney, Mr. McKinley." This testimony was not contradicted. The court thereupon found that the plaintiff was "entitled to temporary alimony for her support and attorneys' fees in the sum of one hundred and fifty dollars," and so adjudged. Afterwards on the same day--August 31, 1903--it appears that the plaintiff having been reconciled to the defendant--her husband--voluntarily dismissed her suit. After unsuccessful motions to set aside the finding and in arrest the defendant appealed.

The appeal invests us with jurisdiction to determine from the record whether or not ...