Lemp v. Lemp
| Decision Date | 08 April 1913 |
| Citation | 155 S.W. 1057,249 Mo. 295 |
| Parties | LILLIAN H. LEMP, Appellant, v. WILLIAM J. LEMP, JR |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.
Reversed and remanded (with directions).
Daniel Dillon, W. C. Marshall and Leahy, Saunders & Barth for appellant.
(1) Innumerable decisions of the courts of other States might be cited wherein alimony in gross was granted. Horning v Horning, 107 Mich. 587; Jeter v. Jeter, 36 Ala 391; Hyatt v. Hyatt, 33 Ind. 309; Williams v. Williams, 6 S.D. 284; Minehan v. Minehan, 145 Wis. 514; Vey v. Vey, 229 N.W. 801; Tuttle v. Tuttle, 128 N.W. 695; Griffin v. Griffin, 18 Utah 98; McChesney v. McChesney, 91 Wis. 268; Roelke v. Roelke, 103 Wis. 204; Walton v. Walton, 57 Neb. 103; Thornberry v. Thornberry, 5 Littlell (Ky.) 251; Calame v. Calame, 24 N.J.Eq. 440; Walston v. Walston, 126 N.W. 145; Boggs v. Boggs, 90 N.E. 1040; Robson v. Robson, 126 N.W. 216; De Ruiter v. De Ruiter, 28 Ind.App. 9; Ferguson v. Ferguson, 145 Mich. 290; Inskeep v. Inskeep, 5 Iowa, 204; Heist v. Heist, 48 Neb. 794; Hamilton v. Hamilton, 37 Mich. 603; Segelbaum v. Segelbaum, 39 Minn. 258; Bialy v. Bialy, 133 N.W. 496. (2) The trial court erred in overruling the motion of plaintiff to be allowed suit money to cover the expenses of prosecuting her appeal from the judgment of the circuit court to the Supreme Court. The circuit court had the power to award plaintiff suit money to prosecute her appeal, and it erred in refusing to do so. Viertel v. Viertel, 99 Mo.App. 717; State ex rel. v. Court of Appeals, 88 Mo. 138. The wife is entitled to alimony and suit money so long as the litigation continues. State ex rel. v. Seddon, 93 Mo. 522; Bishop on Mar. & Div., 384 and 387; Rosenfeld v. Rosenfeld, 63 Mo.App. 411; Blackmeister v. Blackmeister, 106 Mo.App. 390; Libbe v. Libbe, 138 S.W. 688. Some courts at one time entertained the same idea that the trial court did in this case, viz.: that the court could not consistently allow money to pay the expenses of an appeal from its own decision. But, after further reflection, those courts concluded that their first impressions were wrong. Rosenfeld v. Rosenfeld, supra. The appellate courts correct errors of this kind, in like manner, as other errors, and either make the allowances themselves or reverse or remand the case with instructions. State ex rel. v. Court of Appeals, 99 Mo. 223; Watkins v. Watkins, 66 Mo.App. 471. On the hearing of this motion for suit money to cover expenses of her appeal, plaintiff examined seven reputable and experienced lawyers of the St. Louis Bar, and they testified that a reasonable fee for attorneys in preparing plaintiff's appeal and properly presenting it in the Supreme Court was $ 5000. Defendant did not cross-examine these witnesses, nor did he offer any testimony in his own behalf on this question. The court should have allowed plaintiff on this motion for suit money $ 5000 to cover fees of counsel, and, in addition, a sum sufficient to pay for printing abstract and brief.
Lehmann & Lehmann, Morton Jourdan, Edward C. Crow, W. B. & Ford W. Thompson and Schnurmacher & Rassieur for respondent.
(1) Whatever may be the policy in other jurisdictions as to permanent alimony, in Missouri it is discretionary with the court whether the award shall be in gross or from year to year. The policy of this State has been declared by statute. "Upon a decree in favor of the wife, the court may, in its discretion, decree alimony in gross or from year to year." Sec. 2376, R.S. 1909. But, independent of statute, it is not the rule to allow the wife permanent alimony in gross, rather than in installments, although there are some authorities to that effect. "At the present time the practice seems to be to award alimony, either in gross or in installments, according to the circumstances of the case," etc. 14 Cyc. 777, 778, and cases. "Where the allowance of a gross sum is discretionary with the court, it has been said that unless there are special reasons to the contrary, an annual allowance, to be held under the control of the court, is the better mode of decreeing alimony." Von Glahn v. Von Glahn, 46 Ill. 134; Lake v. Bender, 18 Nev. 408; 3 Cyc. 91. (2) The amount of alimony to be awarded is within the sound judicial discretion of the trial court. 2 Am. & Eng. Ency. Law, 120; 14 Cyc. 769, 773; 3 Cyc. 211; Viertel v. Viertel, 212 Mo. 575; Gussman v. Gussman, 140 Ind. 433. (3) And there is no fixed rule which governs. Each case must be determined on its own facts. The usual factors are the fair and reasonable needs of the wife for her support and maintenance, her age and expectation of life, the number of dependent children, the financial ability of the husband, whether the wife brought or contributed to his fortune, and whether her conduct conduced to his fault. 14 Cyc. 775, 779; 2 Am. & Eng. Ency. Law, 120, 125, 127; 3 Cyc. 77, 88; Andrews v. Andrews, 69 Ill. 612; Hedrick v. Hedrick, 28 Ind. 294; McGee v. McGee, 10 Ala. 490; Farley v. Farley, 30 Iowa 353; Burr v. Burr, 7 Hill (N.Y.) 207; Beall v. Beall, 80 Ky. 675; Richmond v. Richmond, 2 N.J.Eq. 92; Smith v. Smith, 19 Neb. 715; Schafer v. Schafer, 10 Neb. 472; Webster v. Webster, 64 Wis. 441; Zuver v. Zuver, 36 Iowa 198; Helden v. Helden, 7 Wis. 296; Irwin v. Irwin, 105 Ky. 632. (4) The determination of the amount of alimony, and whether it shall be in gross or from year to year, being within the discretion of the trial court, that discretion will not be interfered with, unless there has been a clear, manifest or arbitrary abuse of that discretion. And, as in equity cases, while an appellate court has the right of review, it will defer largely to the findings of the lower court, and will set its action aside only upon a strong showing. 14 Cyc. 770, 803; State ex rel. Gercke v. Sedden, 93 Mo. 523; Powell v. Powell, 53 Ind. 517; Gussman v. Gussman, 140 Ind. 433; McCarthy v. McCarthy, 143 N.Y. 240; Lake v. Bender, 18 Nev. 361; Joliff v. Joliff, 32 Ill. 527; McGee v. McGee, 10 Ala. 491; Dickens v. Dickens, 38 Ga. 671, Breinig v. Breinig, 26 Pa. St. 161; Wilde v. Wilde, 37 Neb. 898; Robinson v. Robinson, 7 Humph. (Tenn.) 440; Schlosser v. Schlosser, 29 Ind. 485; Stewartson v. Stewartson, 15 Ill. 145; Baker v. Baker, 79 Ill. 532. (5) The granting of suit money to the wife, to appeal from a decree in her favor, on the ground that the alimony awardedis insufficient, is entirely within the discretion of the trial court; and no allowance need be made if the appeal appears to it to be without merit. 14 Cyc. 766; 3 Cyc. 144; 2 Am. & Eng. Ency. Law, 110; Rosenfeld v. Rosenfeld, 63 Mo.App. 411. Moreover, in this case appellant was allowed, and in June, 1908, received $ 3000 suit money. Her motion for additional suit money, not alleging that the $ 3000 already paid her had been fully expended or was inadequate, and no evidence having been offered, the ruling on the motion will not be reviewed. Motley v. Motley, 93 Mo.App. 473.
BROWN, C. Bond, J., expresses his views in a separate opinion. WALKER, J. concurring. Graves and Faris, JJ., concur with Walker. GRAVES, J., dissenting.
In Banc.
-- The petition was filed March 8, 1908. It prays for a divorce from defendant, for the custody of their minor child aged seven and one half years, and for alimony. The grounds stated are desertion, cruel treatment, indignities and adultery, all of which were set forth in numerous specifications. It also states that the child, who was a boy and named after the defendant, had always been in the care of the plaintiff; that the defendant is a man of great wealth, owning property which plaintiff believes to be worth one and a half million dollars; that she has no money or property except a few articles of small value, and concludes with a prayer for divorce, for the custody of the child, for alimony in gross for alimony pending the suit, and for suit money. The defendant filed an answer admitting that he was married to plaintiff on the 24th day of October, 1889; that he left her on the 13th day of October, 1906, and had not lived with her since that time; that he had stated that he would not live with her again; that it was in fact his purpose not to live with her longer, and the birth of their son as charged. He denied all other allegations of the petition. The answer then set out, by way of cross-petition, that the plaintiff had repeatedly and continuously, since about June, 1903, up to the time of the separation, offered defendant such indignities as rendered his condition intolerable; specifying neglect of her household duties; that she frequently stayed out late at night without explanation upon her return as to where or with whom she had been; that when he suggested that her conduct exposed her to public criticism she became enraged and said "to hell with the public," that she would do as she pleased; that in January, 1905, he found a letter written by her and intended for a man unknown to him, in which she expressed great affection for the unknown man and great antipathy to the defendant, because of which he employed a detective to observe her during a visit which she made to Florida soon afterwards and in January, 1905; that before the marriage plaintiff had made a written agreement whereby she agreed that any children which might be born of such marriage should be brought up and educated in accordance with the wishes of the defendant, and that he should have the absolute control of their moral, religious and collegiate training; not-withstanding which she caused the child, soon after its birth, to be baptized in the Catholic faith without his knowledge and consent, and concealed the fact for three years; that her mode of dressing was so conspicuous as to excite comment and ridicule;...
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