Orwick v. Orwick

• Decision Date: 21 June 1967
• Docket Number: No. 8418,8418
• Citation: 152 N.W.2d 95
• Parties: Margaret ORWICK, Plaintiff and Petitioner, v. Glenn ORWICK, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 95

152 N.W.2d 95

Margaret ORWICK, Plaintiff and Petitioner, v. Glenn ORWICK, Defendant and Respondent.

Civ. No. 8418.

Supreme Court of North Dakota.

June 21, 1967.

Syllabus by the Court

1. The taking of an appeal from a divorce judgment by the husband does not deprive the trial court of jurisdiction to consider an application by the wife for temporary alimony, temporary support money, or attorney fees and expenses necessary and required to defend against such appeal.

2. In a divorce action, where an appeal is taken by the husband from the judgment, the trial court does not lose jurisdiction to consider an application for temporary alimony, temporary support, and attorney fees and costs needed by the wife to enable her to litigate questions raised by the husband's appeal.

3. Although the trial court and this court have concurrent jurisdiction to hear an application for temporary alimony or moneys needed by the wife to enable her to litigate the questions raised by the husband on such appeal, the trial court has seen and heard the parties and their witnesses, is informed as to their financial status, and is in a better position to pass on such application. For these reasons, such application should first be made to the trial court unless there are compelling reasons why this cannot be done.

Conmy, Conmy & Feste, Fargo, for plaintiff and petitioner.

Duffy & Haugland, Devils Lake, for defendant and respondent.

STRUTZ, Judge.

The plaintiff has made a motion in this court for temporary support and alimony to be awarded to her pending her husband's appeal, as well as for attorney fees for preparation of a brief and for appearance in this court. Counsel for the plaintiff states that it is undisputed that the Supreme Court has jurisdiction to hear such motion, but that the jurisdiction of the district court to hear and pass on the motion is disputed by the defendant. In order to have the matter determined as rapidly as possible, the plaintiff has filed her motion in this court.

Generally, when an appeal is taken, the jurisdiction of the Supreme Court attaches and the trial court has no further jurisdiction in the matter. Hermes v. Markham, 78 N.D. 268, 49 N.W.2d 238.

This general rule, however, has been held in many jurisdictions not to apply to motions for temporary support, alimony, attorney fees, and costs on appeal.

There can be no question about the power of this court to hear the plaintiff's motion for such temporary support, alimony, and attorney fees after the filing of the defendant's notice of appeal. Bryant v. Bryant (N.D.), 102 N.W.2d 800. In the Bryant case, we held that this court and the lower court, from which the appeal in a divorce action is taken, have concurrent, original jurisdiction, after appeal, to award attorney fees and expenses for prosecuting the appeal. We recently followed this holding in the case of Zundel v. Zundel (N.D.), 146 N.W.2d 903.

North Dakota is not the only jurisdiction which has adopted this view in divorce proceedings. California has held that the power of the lower court to make an allowance to the wife for support, to enable her to defend or to prosecute an appeal in a divorce action, continues during the pendency of the appeal. Catalano v. Superior Court for County of Los Angeles, 239 Cal.App.2d 641, 49 Cal.Rptr. 57.

Georgia has held that where an appeal from a judgment in a divorce action is filed, the trial judge does not lose jurisdiction to consider the question of allowance of temporary alimony or moneys which may be needed by the wife to enable her to litigate questions raised by the husband on such appeal. Swindle v. Swindle, 221 Ga. 760, 147 S.E.2d 307.

Illinois, too, has held that the trial court in which a...