Miller v. Baer, (No. 7702)

Citation114 W.Va. 566
Decision Date23 January 1934
Docket Number(No. 7702)
CourtSupreme Court of West Virginia
PartiesMildred Shive Miller v. Honorable Ira P. Baer, Judge, etc.

Divorce

Courts having jurisdiction of divorce suits have power in such proceedings to enforce, by process of contempt, decrees for counsel fees and suit money.

Mandamus proceeding by Mildred Shive Miller against Honorable Ira P. Baer, Judge of the Domestic Relations Court of Cabell County.

Writ awarded.

George S. Wallace, for relator.

Woods, President:

Mildred Shive Miller, who, on May 29, 1931, was granted a divorce a mensa et thoro and alimony at the rate of $150.00 per month, seeks, by mandamus, to compel the judge of the domestic relations court of Cabell county to enforce, by process of contempt, its decree of August 26, 1933, awarding the relator herein $150.00 attorney's fees and $50.00-suit money, in the matter of the husband's petition for a reduction in the amount of alimony, and his subsequent appeal to this Court, from a decree of the circuit court of Cabell county, affirming the action of the domestic relations court in refusing the relief prayed for and dismissing his petition. No appearance was made on behalf of respondents.

May a court in a divorce proceeding enforce a decree for counsel fees and suit money, by process of contempt? Or will the wife be required to rely solely upon execution, which latter method, according to the petition, has proved unavailing?

It has been the practice of courts of this state to embrace counsel fees in the wife's allowance for temporary alimony, in order that she may be furnished with the means with which to carry on or defend the suit in the trial court and on appeal should one be taken. But the entire amount need not be fixed at the beginning of the action, as allowances may be made from time to time as the exigencies of the case shall seem to demand. Code 1931, 48-2-13. And the court, upon a decree granting a divorce from either the bonds of matrimony or from bed and board, is authorized to make su3h further decree as it shall deem expedient, concerning the maintenance of the wife, with the express right to alter or revise such decree and make a new decree concerning the same, as the altered circumstances or needs of the parties may render necessary to meet the ends of justice. Code 1931, 48-2-15.

Alimony is an allowance made to the wife out of the husband's estate or income upon decree of separation, springing from the obligation of the husband, incident to the marriage relation, to maintain and support the wife according to his means and social position. Burdette v. Burdette, 109 W. Va. 95, 153 S. E. 150. By the great weight of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT