State ex rel. Hammond v. Worrell, No. 11043

• Court: Supreme Court of West Virginia
• Writing for the Court: BROWNING; GIVEN
• Citation: 144 W.Va. 164,107 S.E.2d 788
• Parties: STATE ex rel. Virginia HAMMOND v. Honorable Robert M. WORRELL, Judge, etc.
• Docket Number: No. 11043
• Decision Date: 03 March 1959

Page 788

107 S.E.2d 788 144 W.Va. 164 STATE ex rel. Virginia HAMMOND
v.
Honorable Robert M. WORRELL, Judge, etc. No. 11043. Supreme Court of Appeals of West Virginia. Submitted Feb. 10, 1959.
Decided March 3, 1959.

Syllabus by the Court

Under the provisions of Code, 48-2-13, a female litigant who is adversely affected by a final decree in a divorce proceeding, and who desires to appeal therefrom, is entitled to reasonable financial allowances for maintenance, pending the granting or refusal of an appeal by this Court, attorney's fees, cost of transcribing the record and other necessary costs incident to the application for an appeal.

Lynch & Henderson, G. Berk Lynch, Beckley, for relator.

Bailey, Worrell & Bailey, R. D. Bailey, Pineville, for respondent.

BROWNING, Judge.

This is an original proceeding in mandamus in which the petitioner, Virginia Hammond, sought a writ requiring the respondent,

Page 789

the Honorable Robert M. Worrell, Judge, etc., to perform certain acts in the divorce suit of Hammond v. Hammond pending in the Circuit Court of Wyoming County. A rule to show cause why the writ should not issue was awarded by this Court on January 26, 1959. However, the rule was limited to suit money, including support money, court costs and counsel fees for purposes of applying for an appeal in the divorce case mentioned in the petition. On February 6, 1959, the respondent answered, and on February 10, 1959, by agreement of the parties, an affidavit of Carl Hammond, plaintiff in the divorce suit, was filed showing the amount of money paid by affiant to his wife, the [144 W.Va. 165] petitioner, from January 1, 1958, through August, 1958. On the last mentioned date, briefs were filed by the parties and the Court heard oral arguments by counsel and by the respondent.

It is alleged in the petition that an order was entered in the divorce suit on January 7, 1958, directing the husband, Carl Hammond, to pay to the petitioner the sum of $170 a month for her support and maintenance, the payments to begin as of January 1, 1958, but that, after the granting of the final decree in September, 1958, Carl Hammond paid the petitioner only the sum of $100 a month for her support and maintenance, although the final decree provided that: '* * * the payment of alimony shall be extended as set forth in the prior temporary decree until such appeal is allowed or application denied.' The respondent in answering says that it was the finding of the trial chancellor that Carl Hammond should, after the entry of the final decree, pay to his wife, the petitioner, only the sum of $100 a month as permanent alimony, and that the provision for continuing the temporary payments of $170 a month pending action on the appeal was erroneously entered in the final decree. The answer further states that counsel fees in the amount of $900 were awarded to the petitioner's attorneys for their services in the trial court in the divorce suit. It is not contended that any sum has been awarded to the petitioner's counsel for services in presenting an appeal to this Court from the final decree of the Circuit Court of Wyoming County. The petitioner alleges also that respondent has refused to require Carl Hammond to pay the necessary cost of transcribing the evidence in the divorce suit which is necessary to the presentation of a petition for an appeal to this Court. The answer does not deny this allegation of the petition.

The issues as restricted by the rule granted in this proceeding have been heretofore determined by this Court, and the law with reference thereto seeems settled. Code, 48-2-13, provides that a trial court may compel the man to pay any sum necessary for the [144 W.Va. 166] '* * * maintenance of the woman, and to enable her to carry on or defend the suit in the trial court and on appeal should one be taken, * * *.' In interpreting this language, this Court, and other courts in interpreting similar language in other statutes, have used such terms as: 'Suit money', 'Costs', 'Counsel fees', 'Support' and 'Maintenance.' This superfluity of wording has sometimes resulted in an overlapping of meaning that tends to obfuscate rather than clarify the statutory language. Compare Finnegan v. Arnold, 133 W.Va. 221, 55 S.E.2d 399, 19 A.L.R.2d 700; Thacker v. Ferguson, 127 W.Va. 177, 32 S.E.2d 47; Miller v. Baer, 114 W.Va. 566, 172 S.E. 612; State ex rel. Davis v. Isbell, 108 W.Va. 104, 150...