Stark v. Stark

• Decision Date: 28 November 1905
• Parties: STARK v. STARK.
• Court: Missouri Court of Appeals

91 S.W. 413

115 Mo. App. 436

STARK v. STARK.

St. Louis Court of Appeals. Missouri.

November 28, 1905.

1. DIVORCE — ALIMONY — PENDENTE LITE — RIGHTS OF WIFE.

Under the statutes declaring a married woman to be a feme sole, and Rev. St. 1899, § 2926, providing that the court shall make an allowance of alimony pendente lite in a divorce case "where the same would be just," a wife against whom an action for divorce is brought is entitled to alimony pendente lite only according to her necessities.

2. SAME — AMOUNT.

A wife when sued for divorce had a separate estate amounting to $800, and her husband was possessed of property valued at about $3,900. The tastes of both were simple and inexpensive. She applied for alimony pendente lite to enable her to pay counsel fees in another state and to employ experts to defend against a charge of attempting to poison her husband. Held, that an allowance of $225 temporary alimony to her was excessive, and should be reduced to $100.

3. SAME — PERMANENT ALIMONY.

A wife when sued for divorce in case she prevails and is decreed a divorce on a cross-bill filed by her is entitled to alimony, as a matter of course, regardless of the value of her separate estate, as provided by Rev. St. 1899, § 2926.

4. SAME — ALIMONY AND MAINTENANCE — ALTERATION.

Under the express provisions of Rev. St. 1899, § 2926, the court on the application of either party may make such alterations of an allowance for alimony and maintenance in a divorce decree from time to time as may be proper.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by William H. Stark against Emma P. Stark for divorce. From an order allowing defendant alimony pendente lite, plaintiff appeals. Reversed conditionally.

This appeal is from an order of the circuit court of Pike county allowing alimony pendente lite in a divorce case. The husband is plaintiff, and prays a divorce upon various grounds set out in the petition, which it will serve no good purpose here to notice. The defendant wife employed counsel, and filed an answer to the petition, which consisted of a general denial, and a cross-bill, praying a divorce for reasons set out therein, all of which were properly verified by her oath. After the issues were thus made up, the defendant wife filed a motion for alimony pendente lite, which motion was supported by her affidavit, to which plaintiff filed his counter affidavit. Thereupon the court took testimony ore tenus on said motion. The defendant wife gave in evidence thereon that she had recently separated from her husband, and that, with his knowledge and consent, she had gone to California. While there, she was furnished with a copy of a printed notice to the effect that her husband had commenced this suit against her by process of publication; that she immediately consulted a firm of lawyers at Fresno in that state as to the proper course for her to pursue, and was advised to return to Pike county and defend the case; that she thereupon contracted an obligation to pay said attorneys, but she had paid them nothing thereon and did not know their charge; that she returned to Pike county and employed counsel to represent her in said cause, and further, that inasmuch as one of the charges against her contained in the petition is that she attempted to poison her husband by placing strychnine in his coffee, that it would become necessary for her to employ expert evidence in making a proper defense thereto, and some means would be required thereabout. The evidence further shows that she had no children, and no one to support other than herself, and she admitted that she then had an estate of $800, consisting of a solvent note for $525 owing to her by her sister, and $275 cash on hand. The evidence also shows that plaintiff's husband held title to a farm of 147 acres in Pike county on which he resided; that the land was of the value of $25 per acre, a total of $3,675; that he owned mules, horses, cattle, and farm implements of the value of $1,225, his entire estate thus being of the fair value of $4,900; that he owed $1,000, consisting of store bills and notes at the bank, a portion of which was secured to the bank by a chattel mortgage on his stock; that he had one child by a former wife. It thus appears that the plaintiff's estate, less his indebtedness, consisted of about $3,900, while that of his wife consisted of about $800. The evidence all tends to show that both parties are of simple and inexpensive habits. On this state of facts, the trial court allowed the wife alimony pendente lite or suit money, amounting to $225, and ordered the husband to pay the same. Plaintiff appeals, contending that inasmuch as the defendant's admissions show her to have and own in her own right, ample means for the immediate purpose of this suit and her personal needs otherwise, the court erred in making such allowance.

J. D. Hostetter and Ball & Sparrow, for appellant. Geo. W. Whitecotton and Tapley & Fitzgerrell, for respondent.

NORTONI, J. (after stating the facts).

The general rule in divorce cases is that the wife, whether plaintiff or defendant, is entitled to a reasonable allowance against the husband for the purpose of either prosecuting or defending the suit. The old doctrine in this behalf proceeded upon the theory that the wife was financially helpless inasmuch as whatever property she possessed at the date of her marriage, or which came to her during coverture became the property of her husband, and as a correlative of this rule, the husband owed to her the obligation of support and maintenance and also a defense of her common-law rights, therefore she was treated as a favored suitor, and the husband was compelled and required to furnish her the necessary means to carry on the suit and support and maintain her during the pendency of the litigation. For were the law otherwise, she would, no doubt in many instances, be denied the privilege of invoking the aid of the law through the process of the courts to redress wrongs suffered, and to defend herself against wrongful and unjust charges. Therefore, it is said that common justice and the policy of the law alike demand that in any litigation between husband and wife, they shall have equal facilities for presenting their case before the tribunal, and this requires that they shall have equal command of funds. 2 Bishop, M. & D. 1891, § 976; Penningroth v. Penningroth, 71 Mo. App. 438; Lambert v. Lambert, 109 Mo. App. 19, 84 S. W. 203; Marker v. Marker, 11 N. J. Eq. 256; Westerfield v. Westerfield, 36 N. J. Eq. 195; 2 Amer. & Eng. Ency. Law (2d Ed.) 92. For the reasons above stated, under the old law, alimony pendente lite was given almost as a matter of course. Westerfield v. Westerfield, 36 N. J. Eq. 197; 2 Amer. & Eng. Ency. Law (2d Ed.) at page 100, says: "It was the universal practice of the ecclesiastical courts of England, and is now generally the practice in the United States, upon an application by the wife to the court, in a divorce suit, to make an allowance for her support during the pendency of the suit, and for costs and expenses to enable her to properly carry it on, if she is without separate means, and the husband is able to support her, whether she be libelant or respondent, without consideration of the merits of the case." And it has been held in this state that in a proper case, the husband is under "obligation to furnish, pending the controversy, out of his estate, in which the wife as such has an interest, not only food and clothing, but the means to protect her rights." Waters v. Waters, 49 Mo. 387; Adams v. Adams, 49 Mo. App. 599; Daiger v. Daiger, 2 Md. Ch. 337.

2. The reason of the rule above stated no longer obtains however, in this and many other states. Under the statutes of this state, pertaining to married women, she is declared to be a feme sole. She can own property in her own right and sue and be sued in her own name, etc. Property held by her at the time of her marriage, and which comes to her during coverture by gift, grant, inheritance, or which may arise from her separate earnings, no longer merges in the estate of her husband, but is declared to be her sole and separate means, and she has the right to contract debts, and with a few exceptions, generally can do and perform those things pertaining to the business world as though she were actually a feme sole. This being the present state of the law...