State ex rel. Cooper v. Garvin, No. 10672

• Court: Supreme Court of West Virginia
• Writing for the Court: LOVINS; Myrtle Cooper, by this original proceeding in mandamus, seeks a writ of mandamus to require the Honorable Charles L. Garvin, Jr.; What we have stated calls for the allowance of a writ of mandamus directed to the defendant, the Honorable Charl
• Citation: 139 W.Va. 845,82 S.E.2d 612
• Parties: STATE ex rel. COOPER, v. GARVIN.
• Decision Date: 18 May 1954
• Docket Number: No. 10672

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

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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[139 W.Va. 846] 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[139 W.Va. 847] 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

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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 [139 W.Va. 848] 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...