State Ex Rel. Davis v. Isbell

• Decision Date: 29 October 1929
• Docket Number: (No. 6648.)
• Citation: 150 S.E. 377
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. DAVIS . v. ISBELL, Judge.

150 S.E. 377

STATE ex rel. DAVIS .

v.ISBELL, Judge.

(No. 6648.)

Supreme Court of Appeals of West Virginia.

Oct. 29, 1929.

(Syllabus by the Court.)

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, of Huntington, for relator.

J. H. Strickling, of Huntington, for respondent.

WOODS, P. 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 effected 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, 79 S. E. 1016. 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's 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, 40 S. E. 335, 55 L. R. A. 930, and Chapman v. Parsons, 66 W. Va. 307, 66 S. E. 461, 24 L. R. A. [N. S.] 1015, 135 Am. St. Rep. 1033, 19 Ann. Cas. 453), 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 to temporary alimony in the suit now before the domestic relations court is not decisive of her right to a reasonable allowance for suit money. The two items are distinct, the latter being provided so that the wife may not...