Holcomb v. Holcomb

• Decision Date: 29 May 1908
• Citation: 49 Wash. 498,95 P. 1091
• Court: Washington Supreme Court
• Parties: HOLCOMB v. HOLCOMB.

95 P. 1091

49 Wash. 498

HOLCOMB v. HOLCOMB.

Supreme Court of Washington

May 29, 1908

Appeal from Superior Court, King County; John B. Yakey, Judge.

Action for divorce by Eva Holcomb against Augustus H. Holcomb. Judgment for plaintiff, and defendant appeals. Application by respondent for the allowance of suit money, attorney's fees, and alimony pendente lite, and for a writ of ne exeat to restrain appellant from leaving the state and an order making the alimony a first lien on appellant's property. Suit money, attorney's fees, and alimony allowed. Writ of ne exeat and order making the alimony a first lien on appellant's property denied.

Mount Rudkin, and Fullerton, JJ., dissenting.

Herbert E. Snook, for appellant.

Bo Sweeney, for respondent.

ROOT J.

This is an application by respondent, to this court in a divorce proceeding, (1) for an allowance of alimony pendente lite for the support of the respondent and her minor child; (2) for an allowance of attorney's fees and expense money, to enable her to properly present her case in this court upon the appeal taken herein; (3) for a writ ne exeat, restraining and prohibiting the defendant from leaving the state of Washington without the order of this court, and that he be required to give bonds to insure his obedience to the orders of the court; (4) for an order or decree making the alimony a first lien on any and all property of appellant.

The application presents the question of the power of this court to grant alimony, attorney's fees, and suit money pending an appeal of a divorce proceeding in this court. Sections 5722 and 5723, Ballinger's Ann. Codes & St. (Pierce's Code, §§ 4636, 4637), read as follows:

'Sec. 5722. Pending the action for divorce the court, or judge thereof, may make, and by attachment enforce, such orders for the disposition of the persons, property and children of the parties as may be deemed right and proper, and such orders relative to the expenses of such action as will insure to the wife an efficient preparation of her case, and a fair and impartial trial thereof; and on decreeing or refusing to decree a divorce, the court may, in its discretion, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the action, when such divorce has been granted or refused, and give judgment therefor.

'Sec. 5723. In granting a divorce, the court shall also make such disposition of the property of the parties as shall appear just and equitable, having regard to the respective merits of the parties, and to the condition in which they will be left by such divorce, and to the party through whom the property was acquired, and to the burdens imposed upon it for the benefit of the children, and shall make provision for the guardianship, custody and support and education of the minor children of such marriage.'

A portion of section 5730, Ballinger's Ann. Codes & St. (Pierce's Code, § 4641), reads as follows: '* * * When either party shall signify a desire to appeal from any of the orders of the court, in the disposition of the property or of the children, the court shall certify the evidence adduced on the trial, and the Supreme Court shall be possessed of the whole case as fully as the superior court was, and may reverse, modify or affirm said judgment, according to the real merits of the case.'

Under section 5723 it is conceded that the trial court has power in all proper cases to allow alimony, suit money, and attorney's fees pending the litigation in that court. That portion of section 5730, which says, 'and the Supreme Court shall be possessed of the whole case as fully as the superior court was,' would seem to imply that the appellate court should, upon the appeal, be vested with every power concerning the parties and the property which was possessed by the trial court during the pendency of the case in that court. But it is suggested that, under the state Constitution, such power is not vested in this court. Where the parties by their pleadings bring before the trial court their property, that court is by section 5722 given express authority to dispose of it, during the pendency of the action, 'as may be deemed right and proper.' Hence, during that time, the property is practically in custodia legis. Section 5723 requires the court, upon granting a divorce, to dispose of the property 'as shall appear just and equitable.' If an appeal is taken, and the decree superseded, where is the control of the property then vested? It could not go absolutely to the appellant, but would be there subject to just such limitations as existed immediately before the decree was entered. That would be the natural effect of the stay bond. It would seem that the power over the property, given by section 5722, would then pass to the appellate court, and should be exercised by that court as an incident to its appellate jurisdiction, essential to the administration of justice in such cases, although, possibly, it might also be exercised by the trial court in providing for the maintenance of the wife, and for the preparation and presentation of her case on appeal, a question, however, that we do not now decide. We think it may be deemed such an incident to the exercise of the appellate and revisory jurisdiction of this court, in a case like this at bar, for two reasons: (1) Because the state is an interested party in every divorce case, and public policy forbids that the issues in such a case should be adjudicated when the wife, by reason of the withholding of her property by the husband, is unable to appear or be heard concerning the rights of herself and minor children; (2) because she, being a joint owner in the property, which by sections 5722 and 5723 is made subject to the control pendente lite, and to the disposition finally of the court, is entitled, both as a matter of right and public policy, to such an allowance from the property as will sustain her during the litigation, and enable her to be heard, before both the trial and appellate courts, as to her claims and rights involved in the litigation.

A divorce case is tried in this court de novo upon the record and evidence brought from the trial court. In the consideration and determination of the case, we must consider, not only the interests of the husband and wife, but also the interests of the state and society generally and of the minor children of the parties. The peculiar character of a divorce proceeding is such that both justice and public policy demand an opportunity for the wife to be present, or heard, before her property and other rights are passed upon by the appellate court. The law cannot consistently say to her: 'You must support yourself during this litigation and defend the interest of yourself, children, and the state, appear on this appeal, and pay all expenses for preparing and presenting your case'; and then add, 'but you will not be allowed any of your money or other property tied up herein with which to meet such demands, even though your inability to appear results disastrously to the interests of yourself, your infant child, and the state.' We do not think our Constitution and statutes demand a construction producing such an incongruity. To say that the law requires the wife to do something which the law makes it impossible for her to do is to assert a proposition to which we cannot accord legal sanction. We think this court has the power to exercise its jurisdiction so as not to give recognition to such a doctrine. Where, as in this case, there is a considerable amount of community property involved, all of which is tied up by a stay bond on appeal, we think this court has the power, incidental to its appellate jurisdiction, to award from such property a sufficient amount to support the wife and minor child, and to properly present her case herein. We think such power is contemplated in section 4, art. 4, of the state Constitution, where it says: 'The Supreme Court shall also have power to issue * * * all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction.' While upon the general proposition as to an appellate court having this power there is some conflict in the authorities, we believe the weight of authority sustains the affirmative of the proposition. Bachelor v. Bachelor, 30 Wash. 203, 70 P. 491; Kimble v. Kimble, 17 Wash. 75, 49 P. 216; Willey v. Willey, 22 Wash. 115, 60 P. 145, 79 Am. St. Rep. 923; Chaffee v. Chaffee, 14 Mich. 462; Goldsmith v. Goldsmith, 6 Mich. 284; Hall v. Hall, 77 Miss. 741, 27 So. 636; Prine v. Prine, 36 Fla. 676, 18 So. 781, 34 L. R. A. 87; Lake v. Lake, 17 Nev. 230, 30 P. 878; Van Voorhis v. Van Voorhis, 90 Mich. 276, 51 N.W. 281; Zeigenfuss v. Zeigenfuss, 21 Mich. 414; Disborough v. Disborough, 51 N. J. Eq. 306, 28 A. 3; Callahan v. Callahan, 7 Neb. 38; Wagner v. Wagner, 36 Minn. 239, 30 N.W. 766; Pollock v. Pollock, 7 S. D. 331, 64 N.W. 165; Pleyte v. Pleyte, 15 Colo. 125, 25 P. 25; Day v. Day, 84 Iowa, 221, 50 N.W. 979; Weishaupt v. Weishaupt, 27 Wis. 621; Krause v. Krause, 23 Wis. 354; 2 Bishop, Marriage & Divorce, § 393; 14 Cyc. 745, 750, 766; 1 Ency. Pl. & Pr. 448, 449; 2 Am. & Eng. Enc. Law, 110; Clarkson v. Clarkson, 20 Mo.App. 94. As to the power of the trial court to make this allowance after appeal has been taken, see McBride v. McBride, 119 N.Y. 519, 23 N.E. 1065; Miller v. Miller, 43 Iowa, 325; Rohrback v. Rohrback, 75 Md. 317, 23 A. 610; State v. St. Louis Ct., 99 Mo. 216, 12 S.W. 661; Storke v. Storke, 99 Cal. 621, 34 P. 339; Reilly v. Reilly, 60 Cal. 624; Peavey v. Peavey, 76 Iowa, 443, 41 N.W. 67; Jenkins v. Jenkins, 91 Ill. 167; Ex parte King, 27 Ala. 387; Ross v. Griffin, 53 Mich. 5, 18 N.W. 534.

While we are of the opinion that this court has the power...