Ogg v. Ogg

• Decision Date: 09 June 1928
• Docket Number: 28,134
• Citation: Ogg v. Ogg, 126 Kan. 310, 267 P. 977 (Kan. 1928)
• Parties: WILLIAM F. OGG, Appellant, v. SOPHIA M. OGG, Appellee
• Court: Kansas Supreme Court

267 P. 977

126 Kan. 310

WILLIAM F. OGG, Appellant, v. SOPHIA M. OGG, Appellee

No. 28,134

Supreme Court of Kansas

June 9, 1928

Decided January, 1928

Appeal from Johnson district court; GARFIELD A. ROBERDS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1.DIVORCE--Temporary Alimony--Jurisdiction to Modify Pending Motion for New Trial.A husband brought a suit for divorce.On his wife's application an order for temporary alimony and expense money was made, which was modified before the hearing of the case on its merits.At the hearing on the merits judgment was rendered for defendant.Plaintiff moved for a new trial.While this motion was pending defendant moved to modify the order for temporary alimony.Held, the court had jurisdiction to entertain and pass upon this motion.

2.SAME--Temporary Alimony--Modification.An allowance of temporary alimony may be modified as varying circumstances justify.

3.APPEAL AND ERROR--Review of Evidence--Necessity of Motion for New Trial.Issues of fact involved on a hearing cannot be reviewed in the absence of a motion for a new trial.

S. D Scott and S. T. Seaton, both of Olathe, for the appellant.

C. W. Gorsuch and C. B. Little, both of Olathe, for the appellee.

OPINION

HARVEY, J.:

On July 9, 1925, William F. Ogg sued his wife, Sophia M. Ogg, for divorce.On consideration of her motion therefor the court allowed her $ 100 suit money and attorney's fees, which plaintiff paid, and also allowed her as temporary alimony $ 50 per month beginning August 1, 1925, which payments plaintiff has made.There was other litigation between the parties growing out of their marital relations, some of which reached this court(Ogg v. Ogg,122 Kan. 244, 252 P. 205;id., 124 Kan. 443, 260 P. 647).For some reason, perhaps because of the other litigation, there was delay in bringing this divorce action to trial.In March, 1927, defendant applied for additional temporary alimony and suit money, which was allowed in the sum of $ 502.70, and was paid.The merits of this allowance are not before us for review--it is mentioned simply as a part of the litigation.The divorce case was tried on its merits in April, 1927.Defendant resisted plaintiff's action for divorce, but had no cross petition for divorce, or other affirmative permanent relief.The trial of the divorce case on its merits resulted in a judgment for defendant.Plaintiff filed a motion for a new trial, which was not disposed of until September 30, 1927.During the pendency of this motion plaintiff continued to pay the $ 50 per month temporary alimony in accordance with the order of the court soon after the action was filed.In June, 1927, defendant filed a motion for an additional allowance of $ 425.68.This motion, and plaintiff's motion for a new trial, were presented to the court on affidavits and argument September 13, and were taken under advisement.On September 30, the court having advised the partieshe was ready to decide the motions, they appeared in court, and plaintiff then asked permission to withdraw his motion for a new trial, which request was granted.The court then ruled on defendant's motion for an additional allowance, and allowed the same in the sum of $ 225.68.

Plaintiff's appeal in this case is from this order making this allowance of $ 225.68.No point is made of the fact that the order for this allowance was made a few minutes after plaintiff had withdrawn his motion for a new trial, for plaintiff conceded that both motions had been submitted to and considered by the court and were ready for decision.(SeeGossettv. Patten, 23 Kan. 340.)

Appellant contends that the district court had no jurisdiction to award temporary alimony or expense money after the final rendition of the judgment in the divorce action, especially as the term of court at which the judgment was rendered had expired and no jurisdiction to make further orders concerning alimony had been reserved, and that under R. S. 60-1507 temporary alimony is simply an interlocutory relief which expires with the entry of final judgment along with the power to make further orders of that character.

It cannot be said that the court had no jurisdiction to entertain and pass upon the motion.The case had not been finally disposed of in the trial court.It was still pending on plaintiff's motion for a new trial, which the court had jurisdiction to sustain or overrule.Had the judgment in the case on its merits or the ruling of the court disposing of the motion for a new trial been appealed, this court would have had authority, as a part of its appellate jurisdiction, to make any appropriate order for temporary alimony and expense money pending the disposition of the case in this court.(Kjellander v. Kjellander,90 Kan. 112, 132 P. 1170.)If plaintiff's contention, that after the judgment in the case on the merits and before disposing of the motion for a new trial and an appeal to this courtthe trial court had no jurisdiction to entertain a motion of this kind, is correct, then there would be a period of time from the beginning of the action until its final disposition in this court when neither the district court nor this court would have authority to entertain such a motion.There is no reason to so construe our statute as to make such a hiatus in jurisdiction.

In 2 Bishop on Marriage and Divorce, 6th ed., § 393, in speaking of suit money and temporary alimony, it is said:

"Though the common course is to make this allowance whenever the case is ripe for it, as will be hereafter explained, yet it is equally proper, on specific application for it, at any stage of the proceeding, whether before or after a verdict or appeal.And it is the same of temporary alimony to the wife."

For the purpose of allowing temporary alimony and suit money the jurisdiction of the trial court continues as long as the case is pending (R. S. 60-1507) in any form in that court(1 R. C L. 881;19 C. J. 209, 210).Appellant cites Davis v. Davis,141 Ind. 367, 40 N.E. 803.It does not support his contention.See, also, Hilker v. Hilker,153 Ind. 425, 55 N.E. 81.Appellant cites Stockman v. Whitmore,140 Iowa 378, 118 N.W. 403.This was an action by the attorneys of a wife who had sued her husband for divorce, and after a judgment against her on the merits and an appeal had been taken, had dismissed her appeal on her own motion against the husband for legal services rendered the wife.It was held plaintiff could not recover.The holding appears to be in conflict with our decisions (Gossett v. Patten,supra;Eisenbise v. Eisenbise,98 Kan. 108, 157 P. 416), but cases on this point, many of which are collected in 25 A. L. R. 354, have little bearing on the question before us.Appellant cites Coons v....