Rutledge v. Rutledge

• Decision Date: 09 March 1909
• Citation: 119 S.W. 489,177 Mo.App. 469
• Parties: JAMES E. RUTLEDGE, Appellant, v. MARY RUTLEDGE, Respondent
• Court: Missouri Court of Appeals

119 S.W. 489

177 Mo.App. 469

JAMES E. RUTLEDGE, Appellant, v. MARY RUTLEDGE, Respondent

Court of Appeals of Missouri, St. Louis

March 9, 1909 ^[*]

Appeal from St. Louis City Circuit Court.--Hon. Robert M. Foster Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

C. W Rutledge and Barclay & Fauntleroy for appellant.

Frank L. Richey and Campbell Allison for respondent.

NORTONI J. Reynolds, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

This is a divorce proceeding. The appeal is from two separate orders of the court allowing the defendant wife alimony pendente lite and suit money. Plaintiff instituted his suit for a divorce, charging numerous indignities on the part of the wife which are averred to have rendered his condition in life intolerable. The defendant wife filed her motion for alimony pendente lite and suit money. On this motion, evidence was taken in the circuit court. It appears therefrom that the parties were husband and wife and had been married twenty-three or twenty-four years. They have two children, a daughter, who has attained her majority, and resides with her father, separate and apart from the defendant, wife, and a son of about fifteen years of age, who resides with the defendant, his mother. It appears the plaintiff husband is a man of means. His estate consists of real and personal property, valued at about $ 100,000. It appears the defendant wife is possessed of a house and lot in which she resides, No. 3832 Russell avenue, in the city of St. Louis. It is a residence property containing ten rooms, conceded to be of the value of $ 5000, and is unincumbered. The defendant husband deeded this property to his wife some two or three years prior to their separation. On November 7, 1907, the court sustained the defendant's motion and ordered the plaintiff to pay the defendant $ 648 on or before November 15, 1907, and the further sum of $ 100 per month, to be paid monthly in installments thereafter, the first installment to be paid on December 10, 1907, and to continue such payments on the tenth of each succeeding month, pending the litigation. Defendant was further ordered to pay $ 750 as suit money, $ 500 of which to be paid on or before November 15, 1907. From this order, plaintiff appealed to this court; whereupon the defendant filed her second motion for an order on appellant to pay a reasonable sum in advance for her support, pending the appeal, and for an additional order or allowance for attorneys' fees to defend the suit in this court on the appeal. This second motion for alimony pendente lite and suit money came on for hearing November 30, 1907, and thereupon the court ordered payment of $ 250 attorneys' fees for the additional services of defending the appeal above mentioned, and, further, that the plaintiff pay the defendant seventy-five dollars a month alimony pendente lite during the appeal. The allowance of seventy-five dollars a month was to be credited, however, on the order of $ 100 per month theretofore made on November 7, 1907. The sum and substance of the two orders is an allowance of $ 648, plus $ 100 per month from and after November 10, as alimony pendente lite, and the sum of $ 1000 as attorneys' fees. An appeal was likewise prosecuted from the second order. The two appeals are submitted together. If there be a question in the case as to the power of the circuit court to make the second allowance of alimony and suit money after an appeal from the first order had been perfected, it will not be considered, for the reason the entire matter may be properly disposed of otherwise. On that question we express no opinion.

In view of the fact that defendant wife has real estate of the value of $ 5000 in her own right, we are persuaded the judgment for alimony pendente lite and attorneys' fees should be reversed. Under the old law, the right of the wife to alimony pendente lite was absolute and it was therefore allowed as a matter of course. But the conditions which gave birth to this right entirely disappeared upon the adoption of our married woman's statute. Under the Married Woman's Act, the wife may own property in her own right, contract and be contracted with, and she may sue and be sued in all things as a femme sole; and the doctrine of the old law that her estate merged in that of her husband no longer obtains. The right to alimony pendente lite and suit money now depends upon the necessities of the case rather than upon the assumption that the wife is a destitute creature, as under the old law. The doctrine repeatedly declared by this court is to the effect that if the wife has sufficient property in her own right to conduct or defend her action and to support herself during its pendency, there can be no reason for imposing this burden on her husband. For the reasons in full, see Stark v. Stark, 115 Mo.App. 436, 91 S.W. 413; Penningroth v. Penningroth, 71 Mo.App. 438; Lambert v. Lambert, 109 Mo.App. 19, 84 S.W. 203. It is now a settled principle of equity that the fact which confers power upon the court to award alimony pendente lite for the support of the wife and suit money for the purpose of the prosecution or defense of a divorce action is that the wife is destitute of sufficient means to meet these charges. [See Collins v. Collins, 80 N.Y. 1.] Mr. Bishop says: "Precisely as in temporary alimony, this suit money is given only to the wife in need, so that if she has an adequate separate income, it is withheld. Or if she has sufficient in part, the husband must supply the residue." [2 Bishop on Marriage & Divorce (1891), sec. 978; also secs. 930, 931.] (The italics are ours.) The doctrine is stated in a most reliable standard work as follows: "It must appear that the wife is without means to maintain herself, and to enable her to properly conduct her suit or defense; when it is shown she has sufficient means, alimony pendente lite will not be allowed." [2 Amer. & Eng. Ency. Law (2 Ed.), 105; also 125.] [See, also, Lake v. Lake 194, N.Y. 179.] The fact that the plaintiff husband in this instance is possessed of an estate valued at $ 100,000, does not relieve the situation nor modify the influence of the equitable principle referred to, for it appears in proof that the present necessities of the defendant are far less than the estate which she holds in her own right. Until this is consumed, or practically so at least, the law will not require the husband to respond to her wants for support and suit money pending the litigation.

It is true the husband, at the altar, agreed to support and maintain his wife. This obligation is modified, however, by the law to the extent that it obtains while she properly demeans herself as a wife and companion. While the divorce proceeding is pending, the obligation of the husband in this behalf is not to be enforced by the court in the divorce proceeding in those cases where the wife has ample estate in her own right, until a final adjudication upon the merits of the divorce controversy is had and the rights of the parties are ascertained with respect thereto. If the wife is found to be the innocent and injured party in the final determination of the controversy, our statute provides that the courts shall award her such alimony as shall be reasonable. The injunction of the statute is not mandatory, however, with respect to alimony pending the suit, for it says the court may decree such alimony pending suit as would be just. [Sec. 2926, R. S. 1899; sec. 2926, Mo. Ann. St. 1906.] And the question of what is just or unjust in the circumstances of the case, when considering alimony pendente lite and suit money, is to be determined by the necessities of the wife. [See authorities, supra.]

What has been said so far concerns only alimony pendente lite awarded to the wife and the allowance for attorneys' fees, for there can be no doubt about the obligation of the husband to provide a reasonable amount for the support of his fifteen-year-old son, even though the matter of divorce be undetermined. It appears this son resides with the mother. The...