Lambert v. Lambert

• Decision Date: 13 December 1904
• Citation: 84 S.W. 203,109 Mo. App. 19
• Court: Missouri Court of Appeals
• Parties: LAMBERT v. LAMBERT.<SMALL><SUP>*</SUP></SMALL>

84 S.W. 203

109 Mo. App. 19

LAMBERT v. LAMBERT.^*

St. Louis Court of Appeals. Missouri.

December 13, 1904.

DIVORCE — ALIMONY — BILL OF EXCEPTIONS — SUFFICIENCY.

1. Where the wife has an independent income, ample to afford her comfortable support and to enable her to defray the expenses incident to

the proper assertion of her rights in an action by her husband for divorce, she is not entitled to temporary alimony.

2. Though the bill of exceptions does not specify the date of the motion for a new trial, the omission is not fatal, where it is supplied by the record.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action for divorce by Albert Lambert against Mary Lambert. From a judgment allowing defendant alimony and counsel fees, plaintiff appeals. Reversed.

F. A. Wind, for appellant. Carl Otto, for respondent.

REYBURN, J.

In this, a divorce proceeding by the husband against the wife, wherein the latter, by cross-bill, asked counter relief, and before the issues had been joined or the case prepared for trial of the merits, the court heard defendant's motion for suit money and maintenance pendente lite, and allowed $500 for counsel fees and $75 for her support. The testimony was confused, but, from defendant's reluctant admissions, and her passbook with the bank with which she kept an account, it is sufficiently established that she was owner of considerable separate estate, consisting of a dwelling, her place of residence, worth $7,500, and other improved realty in the city of St. Louis, producing about $700 gross income annually; that she was holder of $22,500 of notes secured by deeds of trust, also of $6,000 in bonds, producing an income of 6 per cent. per annum — all the foregoing realty and personalty being unincumbered — and that she was also interested to the extent of one-half in a mortgage indebtedness of $15,000, which, however, was hypothecated to secure a loan of $6,000. Originally, at common law, allowances pendente lite were made in favor of the wife, in divorce proceedings, on the ground that as the husband acquired, by virtue of his marital rights, complete control over the property owned by the wife at the time of marriage, or acquired by her during coverture, unless the court required the husband to furnish her with the means of prosecuting her own action or defending against an action brought by him in such proceedings, she would be defenseless and destitute. But as the law respecting the dominion and interest of the husband in the wife's property and her control of her own estate became modified, and, indeed, revolutionized, the reason for the common-law rule no longer continued, and the absolute right of the wife to an allowance pendente lite in advance of trial ceased; and...