Libbe v. Libbe

• Decision Date: 17 June 1912
• Parties: LIBBE v. LIBBE.
• Court: Missouri Court of Appeals

148 S.W. 460

166 Mo. App. 240

LIBBE v. LIBBE.

Kansas City Court of Appeals. Missouri.

June 17, 1912.

1. DIVORCE (§ 214)—ALIMONY—JURISDICTION —STATUTES.

Under Rev. St. 1909, § 2375, which provides that the court on application may allow maintenance and alimony pending a suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, the original jurisdiction as to alimony is lodged in the circuit court, and a motion for alimony pendente lite filed in that court in a divorce proceeding relates to a separate cause of action, though incidental to the divorce action.

2. DIVORCE (§ 255)—ALIMONY—APPELLATE JURISDICTION.

An order of the circuit court allowing or disallowing alimony pendente lite made on a proper hearing of the motion therefor on failure of the defeated party to perfect an appeal from the order becomes a final adjudication of the issues raised by the motion, not subject to collateral attack of the defeated party.

3. DISMISSAL AND NONSUIT (§ 60)—WANT OF PROSECUTION.

Where plaintiff does not come into court to prosecute his suit or when there is no evidence introduced, the proper practice is to dismiss the suit.

4. EVIDENCE (§ 43)—JUDICIAL NOTICE—JUDICIAL PROCEEDINGS—RECORDS.

Upon a motion in the circuit court for alimony pending appeal, the court is bound to take judicial notice of the evidence heard at the trial of the suit on its merits pertaining to the issue of alimony.

5. DIVORCE (§ 214)—MOTION FOR ALIMONY— HEARING.

Where defendant's motion for alimony pending her appeal from a judgment for plaintiff was presented by her counsel at the hearing and read, but no evidence on the motion was offered, the refusal to offer evidence was in effect a declaration that defendant had no evidence additional to that before adduced, and, in view of the evidence before the court at the trial, there was a proper hearing of the motion.

6. DIVORCE (§ 221)—ALIMONY PENDENTE LITE —NATURE AND RIGHT.

Whether guilty or innocent, the wife has a right to prosecute or defend an action for divorce and the husband must furnish the means of attack or defense, if she is without adequate means of her own, and this right extends to the means of prosecuting an appeal.

7. DIVORCE (§ 224)—ALIMONY PENDENTE LITE —APPLICATION—DENIAL.

In a husband's action for divorce, where it appeared that plaintiff was a prosperous business man in good circumstances and enjoying a good income, and that the wife had no means of her own, and, unless she procured money from her husband for her support and to carry on the suit, would have to abandon it or obtain means from her family or friends, the denial of the wife's motion for alimony pending her appeal from a judgment for plaintiff was an abuse of the circuit court's discretion.

8. DIVORCE (§ 255)—APPLICATION FOR ALIMONY PENDENTE LITE—RENEWAL OF APPLICATION.

A judgment of the circuit court denying alimony pendente lite, though not appealed from, did not divest the court of jurisdiction over that subject-matter, since up to the rendition of final judgment in the action the court has statutory power to deal with alimony, regardless of former motions and judgments upon them, within the limits of a sound discretion; and, on remand for final decree dismissing the petition and cross-petition for divorce, the court until the entry of such decree has like jurisdiction as to alimony.

9. DIVORCE (§ 215)—ALIMONY—AMOUNT.

In a husband's action for divorce, where it appears that he was a prosperous business man and enjoyed a good income and that the wife was without means, held, that an allowance of temporary alimony at the rate of $60 per month and a lump sum for 25 months' unpaid alimony at that rate was not excessive.

10. DIVORCE (§ 227) — COUNSEL FEES — AMOUNT.

In a husband's action for divorce, where it appeared that he was a prosperous business man with a good income, and that the wife had no

means, an allowance of $1,075 for attorney's fees to her on appeal and $175 for money laid out by her attorneys held not excessive.

11. DIVORCE (§ 224)—ALLOWANCE—EXPENSES.

In a husband's action for divorce, where it appeared that the wife was without means, and that the husband had a good income, a reasonable allowance on the wife's motion for suit money to defray expenses and fees on plaintiff's appeal from the judgment sustaining a motion for alimony and suit money, and a reasonable allowance of suit money to defend the judgment on defendant's motion to set aside a judgment on a former motion for alimony and suit money, were proper.

Appeal from Circuit Court, Buchanan County; William D. Rusk, Judge.

Action for divorce by Herman H. Libbe against Estelle M. Libbe. After a reversal and remand upon defendant's appeal from a decree granting plaintiff a divorce and dismissing defendant's cross-bill, defendant, by motion in the circuit court, attacked its judgment overruling her motion for alimony and suit money, and filed a new motion for alimony pendente lite. Motions sustained, and plaintiff appeals. Judgment setting aside denial of motion for suit money reversed, and judgment on motions for alimony affirmed.

See, also, 157 Mo. App. 701, 138 S. W. 685; 157 Mo. App. 610, 138 S. W. 688.

Allen & Gabbert, of St. Joseph, for appellant. Charles C. Crow, of St. Joseph, for respondent.

JOHNSON, J.

The cause is before us at this time on appeals of plaintiff from judgments rendered in favor of defendant on certain motions filed by defendant relating to alimony pendente lite and suit money. In 1908 plaintiff commenced the action by filing his petition for a divorce. In due time defendant answered and also filed a cross-bill, in which she prayed for a divorce, for the custody of the offspring of the marriage, and for alimony. Before the trial defendant filed a motion for alimony pendente lite and suit money, and the court sustained the motion, and made defendant an allowance for her maintenance and for attorney's fees that evidently was intended to provide for her necessities until the trial of the case on its merits. The court at the trial found the issues for plaintiff, granted him a divorce, and dismissed defendant's cross-bill. Defendant appealed to this court, and we held that neither party was entitled to a divorce. Libbe v. Libbe, 157 Mo. App. 701, 138 S. W. 685. After the trial and before perfecting her appeal, defendant filed a motion for alimony and suit money pending the appeal. The court overruled the motion, and defendant failed to appeal from the judgment overruling it. After perfecting her appeal, defendant filed a motion in this court for alimony and suit money pending the appeal. This motion was taken with the case, and was overruled in our decision on the ground that original jurisdiction over issues of alimony is vested alone in the circuit court having jurisdiction of the divorce suit, and that since defendant had not appealed from the judgment of the circuit court disallowing alimony pendente lite and suit money there was nothing before us for review but the judgment awarding a divorce to plaintiff, and giving him the custody of the child. We concluded by reversing the judgment and remanding the case "for further proceedings in accordance with the views expressed." After the cause was remanded to the circuit court, defendant on June 15, 1911, filed a motion attacking the judgment overruling her motion for alimony and suit money, which, as stated, was filed in the circuit court after the trial of the case on the merits, and which was overruled July 20, 1909. The ground of the attack was that the court overruled the motion without hearing evidence. Plaintiff filed an answer to this motion, in which the jurisdiction of the court to entertain it was challenged. The court tried the issues raised by this motion and answer on June 20, 1911. Evidence was introduced from which it appears that, when the motion filed by defendant for alimony pending the appeal of the divorce suit came on regularly for hearing, both parties were represented in court by counsel. Referring to the motion, the court said: "Are you ready to take it up?" Counsel for plaintiff answered: "Yes, sir." Counsel for defendant: "Then read the motion for suit money." The court inquired of counsel for defendant: "Do you wish to be heard on it?" Counsel said: "No." Counsel for plaintiff then made an argument, and the court took the motion under advisement. Afterward the court overruled the motion, and the following record was made of the order: "Thursday, July 20, 1909, and during the May term of the circuit court 1909. Now at this day come the parties to the above-entitled cause by...