Smith v. Smith

• Decision Date: 05 December 1910
• Citation: 151 Mo. App. 649,132 S.W. 312
• Parties: SMITH v. SMITH
• Court: Missouri Court of Appeals

132 S.W. 312

151 Mo. App. 649

SMITH v. SMITH

Springfield Court of Appeals. Missouri.

December 5, 1910.

1. DIVORCE (§ 280) — ORDER APPEALABLE — TEMPORARY ALIMONY.

Where a divorce decree reserved authority to modify the same so far as it related to the custody of children, and permanent alimony, an order subsequently denying plaintiff's application for temporary alimony and suit money to enable her to defend defendant's application to modify the decree as to the children, and alimony was appealable under Rev. St. 1909, § 2038, authorizing an appeal from any special order after final judgment.

2. DIVORCE (§§ 212, 224) — DECREE — MODIFICATION — TEMPORARY ALIMONY — ALLOWANCE — "PENDING SUIT FOR DIVORCE."

Rev. St. 1909, § 2375, authorizes the court in a divorce proceeding on application of either party to alter the decree as to alimony and maintenance, and provides that the court may decree alimony "pending the suit for divorce," where the same would be just. Held that, where a divorce decree gave the custody of the children to plaintiff until further order of the court, and also required defendant to pay plaintiff $75 a month alimony until otherwise ordered, and defendant thereafter applied for modification to obtain the custody of the children, and to be relieved from the payment of alimony, the suit for divorce would be regarded as "still pending" within such section, and the court was therefore authorized to grant plaintiff's application for temporary alimony and suit money to enable her to defend against such application.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Winifred Smith against Karl M. Smith. From an order denying plaintiff's application for temporary alimony to enable her to employ counsel to defend an application for the modification of a divorce decree, she appeals. Reversed and remanded.

Pearce, Davis & Curlee, for appellant. T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, for respondent.

COX, J.

On the 19th day of May, 1907, a decree of divorce was rendered in the circuit court of the city of St. Louis in favor of the plaintiff and against defendant, and in this decree the custody of two minor children was awarded to plaintiff until the court should further order, and defendant was required to pay to plaintiff $75 per month as alimony until otherwise ordered by the court. On December 7, 1908, defendant filed his motion for a modification of the decree in which he asked that the allowance for alimony be annulled, and that the custody of the children be taken from plaintiff and be awarded to him. Plaintiff filed an answer to defendant's motion on September 24, 1909, and on the same day filed a motion for temporary alimony in order that she might employ counsel and conduct her defense to the application of defendant for a modification of the decree. The court, on October 29, 1909, sustained said motion, and made an allowance of $100 for attorney's fee, and required defendant to deposit $50 as security for costs. Defendant afterward filed a motion to set aside this order allowing plaintiff temporary alimony upon the ground that the court had no power under the statute to make an order for temporary alimony in this proceeding. The court sustained this motion presumably upon the ground alleged therein, and set the order allowing the temporary alimony aside, and from that order the plaintiff has appealed.

It is now suggested that this appeal was prematurely taken for the reason that no appeal will lie from the order of the court granting or refusing temporary alimony in a proceeding after final judgment for divorce to modify the decree as to the custody of the children, or the payment of alimony. A decision of this question rests upon the construction to be given the clause in the statute authorizing appeals (Rev. St. 1909, § 2038), as follows: "From any special order after final judgment in the cause." In the cases in which the right of appeal has been sustained or recognized under this clause we find no discussion of the meaning of this clause and no rule laid down by which to determine when an appeal will lie under this provision. State ex rel. v. Walker, 85 Mo. App. 247, 251; Young v. Thrasher, 61 Mo. App. 413; St. L., K. & N. W. R. R. Co. v. Clark, 119 Mo. 357, 363, 24 S. W. 157; McAnaw v. Matthis, 129 Mo. 142, 31 S. W. 344.

The order of the court in this case setting aside the former order allowing alimony pendente lite was final as to that matter, and trial of the issues raised by the motion of defendant to modify the decree, and plaintiff's answer thereto, could in no way affect this order as to suit money. Had the case proceeded to final determination upon those issues, and had they all been decided in plaintiff's favor she could not have appealed from that judgment because it was in her favor, and, therefore, if she could not appeal from the order made on her...