Salyer v. Salyer
| Decision Date | 08 June 1923 |
| Parties | EDNA G. SALYER, Respondent, v. ARTHUR G. SALYER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Barry County Circuit Court.--Hon. Charles L. Henson Judge.
AFFIRMED.
Judgment affirmed.
D. H Kemp for appellant.
(1) Alimony and attorney fees can be adjudged only as an incident to a decree for a divorce, and then only in favor of the wife when she is the prevailing party. Doyle v. Doyle, 26 Mo. 545, 549; McIntire v. McIntire, 80 Mo. 476, 472; Slaughter v. Slaughter, 106 Mo.App. 104. (2) The court after dismissing plaintiff's petition, and entering a judgment against her for costs, had no jurisdiction, to award her alimony and expenses of appeal. Dawson v Dawson, 37 Mo.App. 270, 213; Watkins v. Watkins, 66 Mo.App. 468; Adams v. Adams, 49 Mo. 592, 596-7; Creasey v. Creasey, 175 Mo.App. 237, 243.
J. S. Davis for respondent.
(1) The trial court may award suit money for an appeal to the wife where she is plaintiff, although she is defeated, unless the appeal is without merit. Rosenfeld v. Rosenfeld, 63 Mo.App. 411; Mahn v. Mahn, 70 Mo.App. 337. And the fact that the trial court made the allowance is some evidence that the appeal is not devoid of merit. Rosenfeld v. Rosenfeld, supra, 413; Viertel v. Viertel, 99 Mo.App. 717. (2) It was after plaintiff had filed her motion for new trial and affidavit for appeal in due form and timely, the court made the order for alimony pendente lite, for suit money and attorneys' fees; this the court had a right to do; for at that time the cause was still pending. Watkins v. Watkins, 66 Mo.App. 471; Bishop on Mar. and Div., secs. 384, 387; State ex rel. v. Sedden, 93 Mo. 522; State ex rel. v. Court of Appeals, 88 Mo. 137; Dawson v. Dawson, 37 Mo.App. 207.
Plaintiff sued defendant for divorce. During the trial and before the taking of testimony was completed the plaintiff filed a motion asking for temporary alimony as suit money. At the close of the testimony the court allowed $ 100 to plaintiff's attorney as suit money. On the merits the court found against plaintiff and dismissed her bill. She then filed a motion for new trial which was overruled. This was followed by an affidavit for appeal by plaintiff, which appeal was granted and the court on the same day made an order allowing plaintiff $ 30 per month for support and also allowed the cost of transcript and cost of printing abstract of record, docket fee and attorney's fee of $ 100 to enable her to prosecute her appeal. Defendant then filed motion to set aside the orders for temporary alimony which was overruled and he has appealed from the court's action thereon.
Plaintiff's appeal from the judgment against her on the merits in the divorce case has not yet been lodged in this court so the only matter now before us is the action of the trial court in allowing alimony pendente lite to plaintiff to enable her to prosecute her appeal and for support until the appeal would be determined. The evidence taken at the trial is not before us, hence we must assume that the appeal is not frivolous.
The only question remaining is as to the jurisdiction of the trial court to allow suit money to enable plaintiff to prosecute her appeal when she lost below and to adjudge support pending the appeal. The appeal undoubtedly suspended judgment of the court pending the appeal and for that reason no final judgment has yet been rendered in the divorce case on its merits. The right of the trial court to allow both suit money and support under such circumstances has been finally put to rest in this State. [State ex rel. v. Calhoun, 206 Mo.App. 298, 227 S.W. 1080; Same case by the Missouri Supreme Court, 232 S.W. 1038.]
Appellant insists however, that since no written motion asking an allowance of alimony pending the appeal was filed by the plaintiff, that the trial court was for that reason without jurisdiction to make the allowance and also stresses the point that no evidence was heard by the court on the question of the allowance of temporary alimony pending the appeal. On this latter question it is noted that plaintiff in her petition alleged that she was without means and that defendant had means and asked for suit money, permanent alimony and all relief to which she might be entitled. Pending the trial and before the testimony was closed, she filed a motion asking for alimony pendente lite but no separate motion was filed asking for alimony pending the appeal. The order of the court making the allowance to cover support and expenses pending the appeal was made on the same day the appeal was allowed and for the purposes of this appeal we shall regard all the orders of the court as being made at the same time though since they were all made during the same term, we do not regard the fact that they were entered simultaneously as material. Since the petition alleged the financial standing of the parties and asked for alimony and a motion for temporary alimony was filed during the progress of the trial and the evidence taken at the trial is not before us, we are justified in assuming that evidence bearing on the question of the financial condition of the parties and the necessity of an allowance for the support of plaintiff and the expenses of the suit was heard by the court. That being true, it was not necessary that the court should require that the same evidence be re-introduced or that other evidence be produced in order to justify an allowance pending the appeal. [Rosenfeld v. Rosenfeld, 63 Mo.App. 411.]
Appellant's motion to set aside this order does not allege nor did he offer to show that he was unable to make the payments required by the order but confines his motion to an attack upon the authority and jurisdiction of the court to make the order.
We are also of the opinion that the failure of plaintiff to file a separate motion asking for an allowance of temporary alimony pending the appeal is not fatal to the jurisdiction of the court to make the order. The statute gives the court jurisdiction to make the order and does this without specifying the necessity of a formal motion asking for it. The statute, section 1806, Revised Statutes 1919, provides that after alimony has been allowed, alterations may be made from time to time on the application of either party. This provision would seem to require that to secure a change is an order already made, a formal application therefor should be filed by the party asking for the change but as to alimony pendente lite it merely provides that " and the court may decree alimony pending the suit for divorce in...
To continue reading
Request your trial