Largilliere v. Largilliere

• Decision Date: 09 April 1931
• Docket Number: 5599a,5541,5599
• Citation: 50 Idaho 496,298 P. 362
• Parties: KATHRYN D. LARGILLIERE, Appellant, v. EDGAR W. LARGILLIERE, Respondent
• Court: Idaho Supreme Court

298 P. 362

50 Idaho 496

KATHRYN D. LARGILLIERE, Appellant, v. EDGAR W. LARGILLIERE, Respondent

Nos. 5541, 5599, 5599a

Supreme Court of Idaho

April 9, 1931

DIVORCE - COMMUNITY PROPERTY, DISPOSAL OF - ALIMONY - PERIODIC PAYMENTS-SECURITY-COSTS OF APPEAL-PAYMENT.

1. In divorce action, court should ordinarily decree disposal of community property to give spouses sole and immediate control of determined shares.

2. Decree awarding periodic alimony payments to wife would be remanded so as to require such security as trial court deemed proper.

3. Order directing husband to pay costs of wife's divorce appeal directly to persons entitled to payments was not void.

4. In divorce action, order requiring husband to pay wife fees to combat husband's appeal from order allowing wife counsel fees was not improper as being collateral to main action (C S., sec. 4642).

APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. Jay L. Downing, Judge.

Action by Kathryn D. Largilliere against Edgar W. Largilliere for divorce. Cross-complaint by defendant praying for a divorce. Judgment for defendant and cross-plaintiff, from which plaintiff appeals. From an order requiring defendant to pay the costs of plaintiff's appeal, defendant appeals. Plaintiff procured a second order directing defendant to pay her costs and attorney fees in opposing this appeal, from which also, defendant appeals. Cause remanded, with instructions in first appeal. Affirmed as to the other two.

Affirmed.

Merrill & Merrill, for Respondent.

When the wife appeals from a divorce granted the husband before she is entitled to an order allowing her counsel fees and suit money, she must make satisfactory showing that her appeal is prosecuted in good faith and there are no reasonable grounds to believe the appeal will not be successful. (Keezer on Marriage and Divorce, sec. 730; 19 C J. 232; Johnson v. Johnson, 78 Colo. 187, 240 P 944; Argabrite v. Argabrite, 56 Cal.App. 650, 206 P. 81; note, 18 A. L. R. 1497.)

An order directing the husband to pay counsel fees, suit money and costs to anyone except the wife is void because the party to whom the money is ordered paid is not a party to the suit. Sharon v. Sharon, 75 Cal. 1, 16 P. 345; Anderson v. Anderson, 124 Ill.App. 613; Bailey v. Bailey, 22 N.D. 553, 134 N.W. 747; Knaack v. Knaack, 245 Ill.App. 1.)

Peterson, Baum & Clark, for Appellant.

Original jurisdiction to allow counsel fees and suit money to a wife in order to enable her to prosecute her appeal to the supreme court from a decree rendered against her in favor of the husband is vested in the district court. (C. S., sec. 4642; Roby v. Roby, 9 Idaho 371, 3 Ann. Cas. 50, 74 P. 957; Callahan v. Dunn, 30 Idaho 225, 165 P. 356; Enders v. Enders, 34 Idaho 381, 18 A. L. R. 1492, 201 P. 714; Hay v. Hay, 40 Idaho 624, 235 P. 902; Vollmer v. Vollmer, 43 Idaho 395, 253 P. 622.)

When a wife appeals from a divorce granted the husband she is entitled to an order allowing her counsel fees and costs when she shows that she is without funds, that the husband is able to pay, and the appeal is being prosecuted in good faith. (Roby v. Roby, 10 Idaho 139, 77 P. 213; Griffith v. Griffith, 71 Wash. 56, 127 P. 585; Zerega v. Zerega, (Mo. App.) 200 S.W. 700.)

Where counsel fees and costs are allowed the wife, it is utterly immaterial that they are made payable to the wife's attorneys or the court reporter or the clerk of the court. (Kowalsky v. Kowalsky, 145 Cal. 394, 78 P. 877; Storke v. Storke, 99 Cal. 621, 34 P. 339; Robinson v. Robinson, 79 Cal. 511, 21 P. 1095; People v. District Court, 21 Colo. 251, 40 P. 460; Chambers v. Chambers, 75 Neb. 850, 106 N.W. 993.

LEE, C. J. Budge, Givens, Varian and McNaughton, JJ., concur.

OPINION

LEE, C. J.

There are three separate appeals involved here. Plaintiff and main appellant, Kathryn D. Largilliere, sued her husband, Edgar W. Largilliere, defendant and respondent, for divorce upon the ground of extreme cruelty. She charged that in the presence of third persons, one of them a minor child of the parties, respondent accused her of infidelity and left home never to return, thereafter publishing notice that he would not be responsible for debts incurred by her and causing her checks drawn upon community funds to be regularly dishonored.

Respondent answered, denying that he had charged appellant with infidelity, but admitting that he had published the notice aforesaid, stopped certain of appellant's credit and ordered her checks drawn upon Largilliere's Company, bankers, to be dishonored. The latter steps, he alleged, were imperatively necessary to protect the bank and his own name and business, inasmuch as appellant was continually engaging in stock exchange and mining ventures with divers people, traveling with them hither and yon, and sojourning long periods away from home, to the neglect of herself and the children, all of which was against his will and without his consent. And he cross-complained, setting up not only the matter just detailed but a series of indiscretions and intimacies with other men the which he claimed injured the reputation of the bank, caused him humiliation and grievous mental suffering, wrecked his happiness and his home, and established the unfitness of appellant as wife and mother. In his answer, he averred that appellant at all times had been furnished by him with abundant moneys and had an account of her own in a separate bank. Appellant denied the material allegations of the cross-complaint.

After a lengthy and involved hearing on the merits, the court found against the wife and in favor of the husband; and judgment was entered, awarding him absolute divorce, the custody of the children and providing that he should pay appellant the sum of $ 60 per month for a period of sixteen years; it was provided that such payments should never be subjected to assignment or transfer or to sale under execution and should lapse and abate, in case appellant should die before the expiration of the period aforesaid. From this judgment, the wife appealed. Thereafter, on January 23, 1930, the wife having changed counsel, procured from the court an order directing the husband to pay her for the prosecution of her appeal certain moneys for attorney's fees, transcript fees, clerk's fees and the printing of her brief. From this order, respondent forthwith appealed. Again the wife importuned the court; and, on March 31, 1930, the court entered its order requiring the husband to pay her costs and attorney fees for the purpose of opposing the appeal last...