State ex rel. Cooper v. Garvin

• Decision Date: 18 May 1954
• Docket Number: No. 10672,10672
• Citation: 139 W.Va. 845,82 S.E.2d 612
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. COOPER, v. GARVIN.

Page 612

82 S.E.2d 612

139 W.Va. 845

STATE ex rel. COOPER, v. GARVIN.

No. 10672.

Supreme Court of Appeals of West Virginia.

Submitted April 13, 1954.

Decided May 18, 1954.

Syllabus by the Court.

In a divorce suit in which the female litigant suffers an adverse decree, she is entitled to reasonable allowances for suit money, costs, counsel fees and support, pending the granting or refusal of an appeal by this Court; and upon the refusal by the trial court to make such allowances, she may have a writ of mandamus to compel the trial court to grant her such amounts as are reasonable and proper in the case.

Ned H. Ragland, Beckley, W. Hayes Pettry, Charleston, for relator.

Wolverton & Callaghan, Summersville, for respondent.

LOVINS, Judge.

Myrtle Cooper, by this original proceeding in mandamus, seeks a writ of mandamus to require the Honorable Charles L. Garvin, Jr., Judge of the Circuit Court of Nicholas County, West Virginia, to allow her suit money, costs, counsel fees, support and maintenance.

A final decree of divorce has been rendered, as hereinafter stated. The plaintiff alleges that she has a bona fide intention to prosecute an appeal to this Court. The petition also prays for a writ of mandamus to require her former husband to surrender and deliver possession of certain property to the relator.

Myrtle Cooper and Clifford J. Cooper were formerly husband and wife. She instituted a suit praying for a divorce or annulment of their marriage, on the ground of cruelty. The husband filed an answer and cross bill in which he prayed for a divorce. After a prolonged hearing, the Circuit Court of Nicholas County denied the relator the relief prayed for by her and granted Clifford J. Cooper a divorce on the ground of adultery, and likewise granted to the former husband an undivided one-half interest in certain real estate and personal property, having the approximate value of $25,000.

The legal title to the real estate and personal property seems to have been in the name of the relator and it is indicated that she placed a lien thereon, amounting to $13,000.

The divorce decree pronounced by the Cicuit Court of Nicholas County decreed that the property was held by the relator and her former husband as tenants in common, discharged the interest of the husband from the lien placed thereon by the relator, and required the relator to make and deliver a deed of conveyance, conveying a one-half undivided interest in the real estate and a bill of sale for the one-half undivided interest in the personal property. It was decreed that upon failure of the relator to make such deed of conveyance and bill of sale, a special commissioner appointed by the court was to execute such deed and bill of sale, and that the relator may have possession of her interest in the real estate and personal property on the basis of a tenancy in common. The relator made application for immediate and exclusive possession of the real estate and personal property, which was denied. Also, the court refused to compel and accounting by the husband, as prayed for by the relator.

It seems that the property of the relator and her former husband is now being used in a restaurant and soft drink business, located near Summersville, West Virginia. Relator asserts that her former husband is receiving profits amounting to approximately $200 per month.

It was decreed by the trial court in the divorce suit that the relator and her former husband should pay their own attorney fees and one-half of the cost.

Several motions were made during the pendency of the divorce suit by the relator for suit money, costs and temporary alimony, which were denied.

The proceedings had after the divorce decree was pronounced, giving rise to this proceeding, were initiated by a notice served upon the former husband, after the rendition of the divorce decree, to the effect that the relator would move the Circuit Court of Nicholas County for entry of a decree allowing her 'reasonable and sufficient sums for her support and maintenance during the further pendency of this cause, in this Court and on appeal, from the final decree to be entered herein in accordance with the Court's announced conclusions as set forth in its January 30, 1954, letter to Brooks B. Callahan, and for sums sufficient to employ counsel to seek and prosecute such appeal, and sums sufficient to pay the costs of making up a proper record, paying the Court Reporter, the Clerk and all other costs reasonable, proper and necessary to the seeking and prosecution of an appeal * * *'.

The Circuit Court of Nicholas County heard oral testimony in support of that motion on or about February 27, 1954. The relator testified in support of her motion that she intended to seek an appeal from the final divorce decree, that she had no money with which to prosecute such an appeal and had no income with which to pay the costs, counsel fees, and no income at this time with which she could employ an attorney. She further testified that her husband is making approximately $200 per month out of the business formerly conducted by them; and that she had no income. Her testimony shows however, that her husband had paid her $225, $50 of which was paid on September 22, 1953. Relator also testified that she had no assets of any kind except her interest in the business formerly conducted by her and her former husband; that it would cost her $40 per month to provide herself with food; $12 per week for room rent and $30 per month to provide herself with clothing. She gave as her opinion that such amounts were reasonable. It was developed in the hearing that relator had purchased an automobile and was paying $58.10 per month as deferred payments on the purchase price of the automobile and $10 per month for insurance on the automobile. The official court reporter testified that in accordance with his estimate, it would cost $750 to transcribe the record of the divorce suit.

Counsel for the former husband relied upon the original record in the divorce suit and insisted that it be given full consideration in determining the merits of this suit. After the conclusion of the hearing on the motion, the Circuit Court of Nicholas County, on the 5th day of March, 1954, denied relator an allowance for payment of the costs of the transcript of the record, any sum with which to pay counsel fees, and likewise, any allowance to provide for her support and maintenance. In the same decree, the Circuit Court of Nicholas County refused to require the former husband to vacate the real estate and render an accounting to the relator.

The defendant in this proceeding demurred to the petition upon the grounds that mandamus is not the proper remedy and that it is discretionary with the trial court whether such motions of the relator should be granted. The defendant also answered that the original record of the divorce suit shows that the relator was guilty of adultery; that she had encumbered the real estate and personal property hereinabove mentioned with a lien amounting to $13,000; that she had purchased a new automobile; that she lived in an apartment in the City of Charleston; that she had left her employment and had also left her husband without reason; that it would be inequitable to require the former husband to pay the sums demanded by the relator. It is averred in the answers that an appeal and not mandamus is the proper remedy; that the allowances requested by the relator is discretionary with the trial court; and that the relator has an adequate remedy by appeal.

Relator demurred to defendant's answer and replied specially. The replication in effect denied the right of defendant in this proceeding to consider the record in the divorce proceeding in passing upon the application for support, maintenance, counsel fees, costs and suit money. The replication further avers that relator is remediless, except by a writ of mandamus; that relator is without funds and cannot avail herself of an appeal because of her penurious condition.

Relator demurred to the defendant's answers and filed a written notice to strike the defendant's demurrer to her petition in this proceeding.

The prayer of the petition in this proceeding to review the disposition of the real and personal property is not appropriate. Mandamus will not be utilized as a substitute for an appeal or writ of error. State ex rel. v. County Court, 33 W.Va. 589, 11 S.E. 72. See Barnes v. Warth, 124 W.Va. 773, 776, 22 S.E.2d 547; Smith v. State Road Comm., 110 W.Va. 296, 299, 158 S.E. 163.

The jurisdiction of a circuit court sitting in equity to make a disposition of property will be found in Chapter 70, Article 2, Section 15, Acts of the Legislature, 1953, Regular Session, reading in part as follows: '* * * For the purpose of making effectual any order or decree provided for in this section the court, or judge thereof in vacation, may make any order or decree concerning the estate of the parties, or either of them, as it shall deem expedient.'

The Circuit Court of Nicholas County having jurisdiction to dispose of the real and personal property of the relator and her former husband, we will not review the same by mandamus, and therefore, we express no opinion upon the legality of the disposition made by such Court in the final divorce decree.

When we come to the question of monetary allowances applied for by the relator, a different question is presented. Generally, in other jurisdictions, the awarding of such allowances is discretionary with the trial court. See Mapes v. Mapes, 24 Wash.2d 743, 167 P.2d 405; Tenny v. Tenny, 147 Fla. 672, 3 So.2d 375; Wood v. Wood, 288 Mich. 14, 284 N.W. 627; Tumini v. Tumini, 150 Pa.Super. 363, 28 A.2d 357; Cline v. Cline, 132 Cal.App. 713, 23 P.2d 431; Elies v. Elies, 239 Wis. 60, 300 N.W. 493; Brong v. Brong, 129 Pa.Super. 224, 195 A. 439; Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745, 747. In the Butler case, it is further held that the discretion...