Slater v. Slater

Decision Date18 May 1937
Docket NumberC. C. 576.
CourtWest Virginia Supreme Court

Submitted April 27, 1937.

Syllabus by the Court.

1. A decree for the payment of temporary alimony and attorney's fees is appealable under Code. 58-5-1, where the jurisdictional amount is involved.

2. Questions of law arising under an appealable decree may not be certified.

Certified Question from Circuit Court, Kanawha County.

Suit by Lydia Slater against J. R. Slater. The circuit court overruled a demurrer to the amended and supplemental bill and certified the question for review.

Certification dismissed.

John T Copenhaver and L. Steele Trotter, both of Charleston, for plaintiff.

Claude L. Smith, of Charleston, for defendant.

KENNA President.

Lydia Slater sued her husband, J. R. Slater, for divorce in the circuit court of Kanawha county. A demurrer was interposed to her amended and supplemental bill, and upon overruling the demurrer the trial court certified, upon the joint application of the parties, the following matters of law to this court:

(1) The averment, in the amended and supplemental bill of complaint that the plaintiff and the defendant are first cousins precludes the plaintiff from instituting an action for divorce.

(2) The only relief available to the plaintiff is the institution of a suit to annul said marriage.

(3) The court is without jurisdiction to grant a divorce, and no alimony, counsel fee, or suit money can be decreed against the defendant.

The order entered on December 7, 1936, recites a previous order entered on the 22d day of May, 1936, awarding to the plaintiff and against the defendant $50.00 attorney's fees and support money of $30.00 per month. The order of December 7, 1936, expressly provides that the defendant be bound by the terms and conditions of the order of the 22d day of May, 1936. It will thus be seen that there was involved in the latter order the payment of something over $250.00, and that it was an order for the payment of money. This court has already held that a decree for alimony pendente lite is a decree for the payment of money, and that if the money involved equals the jurisdictional amount for an appeal to this court, the decree is appealable. Blackshere v Blackshere, 111 W.Va. 213, 161 S.E. 27. The decree being appealable, the matters of law arising upon it are not certifiable. Staud v. Sill, 114 W.Va. 208, ...

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