State Ex Rel. Ada Belle Davis v. Isbell
| Decision Date | 29 October 1929 |
| Docket Number | (No. 6648) |
| Citation | 108 W.Va. 104 |
| Parties | State ex rel. Ada Belle Davis v. L. D. Isbell, Judge, etc. |
| Court | West Virginia Supreme Court |
Matrimony is Entitled to Reasonable Allowance for Suit Money, Though Decree From Bed and Board Made no Provision for Alimony; Wife Held Entitled to Mandamus to Compel Reasonable Allowance of Suit Money in Proceeding for Divorce From Bonds of Matrimony (Code, c. 64, § 13).
A wife seeking a divorce from the bonds of matrimony under section 13, Chapter 64, Code, is entitled to a reasonable allowance for suit money, and upon refusal of the trial court to make such allowance, may have a writ of mandamus to compel such allowance as is reasonable and proper in the case. (p. 105.)
cree in Divorce Proceeding at Such Time as Exigencies of Case Require; Matter of Suit Money Could Not From Nature of Proceedings be Finally Determined by Divorce Decree a Mensa et Thoro (Code, c. 64, § 13).
Suit money is usually awarded by an interlocutory decree, and at such times as the exigencies of the case may require. From the very nature of the proceedings authorized under section 13, Chapter 64, Code, the matter of suit money could not of necessity be finally determined by the decree awarding a divorce a mensa, et thoro. (p. 106.)
(Divorce, 19 C. J. § 546, p. 230, N. 56.)
Original mandamus proceeding by the State, on the relation of Ada Belle Davis against L. D. Isbell, Judge of the Domestic Relations Court of Cabell County.
Writ awarded.
Thomas West, for relator.
J. H. Strickling, for respondent.
Woods, President:
This is a proceeding by mandamus to compel the judge of the domestic relations court of Cabell county to reconsider relator's motion for money with which to prosecute her suit for an absolute divorce, and to determine on the amount to which she is entitled.
In August, 1929, relator filed her bill in the domestic relations court of Cabell county seeking a divorce from the bonds of matrimony. The bill, which is based on section 13, Chapter 64, Code, sets up the fact that the relator had previously been awarded a divorce from bed and board, to-wit, in 1926; that no reconciliation had been affected since the granting of said divorce, and that a reconciliation is impossible; that she is now, and has been for a long time, wholly unable to work and is dependent upon her father and brother; that her husband is an able-bodied man and is making a good salary, and concludes with a prayer for an absolute divorce and for suit money. This course is enjoined upon her under our practice to secure an absolute divorce. Dixon v. Dixon, 73 W. Va. 7. Pursuant to notice to defendant, the relator moved the court for suit money, and filed in support thereof said bill of complaint. The court entered an order overruling and dismissing said motion on the sole ground that it appeared "that said decree (1926) made no provisions for alimony." From the return filed by the respondent in the present mandamus proceeding, it appears that the court's1 ruling was made on the assumption that the order of 1926 was conclusive as to temporary alimony (citing Cariens v. Cariens, 50 W. Va. 113, and Chapman v. Parsons, 66 W. Va. 307), and therefore conclusive on suit money, since the power of the court to grant temporary alimony and suit money is derived solely from section 9, Chapter 64, Code.
As we see it, the question of whether or not the wife is entitled...
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