State v. Maxwell

• Decision Date: 13 September 1921
• Docket Number: 4428.
• Citation: 108 S.E. 418,89 W.Va. 31
• Parties: STATE EX REL. TRAVIS v. MAXWELL, JUDGE, ET AL.
• Court: West Virginia Supreme Court

108 S.E. 418

89 W.Va. 31

STATE EX REL. TRAVIS v. MAXWELL, JUDGE, ET AL.

No. 4428.

Supreme Court of Appeals of West Virginia.

September 13, 1921

Submitted September 7, 1921.

Syllabus by the Court.

In a suit by the wife against her husband for separate maintenance and support, not involving divorce, she is entitled to reasonable allowances for suit money and for her support pendente lite, and upon the refusal of the trial court to make such allowances against the defendant, she may have a writ of mandamus to compel such allowances as are reasonable and proper in the case.

Original application by the State, on the relation of Lavina T Travis, for a writ of mandamus against Haymond Maxwell Judge, and others, to require the court to make a reasonable allowance for expenses while prosecuting a suit against petitioner's husband, R. A. Travis, for separate support and maintenance. Writ awarded.

McCamic & Clarke, of Wheeling, and Albert L. Lohm, of Clarksburg, for relator.

Hoffheimer & Templeman, of Clarksburg, for respondent.

MILLER J.

The petitioner seeks by original process of mandamus from this court to require the respondent to make her a reasonable allowance for expenses and for her support while prosecuting her suit in his court against Robert A. Travis for separate support and maintenance, on the ground of his desertion of her without cause.

According to the return of respondent he was constrained to deny the petitioner suit money and money for her separate maintenance pendente lite on the ground that she had no suit pending for divorce, and that he felt bound by the ruling of this court in 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, in which it was said, point one of the syllabus, that "in no suit but one seeking a divorce of some character is there jurisdiction to award alimony pendente lite." That was not a suit for divorce, but an original suit to set aside a decree of divorce previously obtained by the husband against his wife. The marital relation between them had by that decree been dissolved and the relationship destroyed thereby and the real question there involved was whether the plaintiff in that kind of a suit was entitled to suit money and maintenance pending the suit. The point may have been too broadly stated, therefore, and must be interpreted as applicable only to like cases. Strictly speaking, alimony, temporary or permanent, is an incident to a suit for divorce.

In the later case of Lang v. Lang, 70 W.Va 205, 73 S.E. 716, 38 L.R.A. (N. S.) 950, Ann.Cas. 1913D, 1129, however, we decided that courts of equity have jurisdiction, upon the ground of inadequate remedy at law, independently of any proceedings for divorce, to decree maintenance to a wife who has been deserted by her husband. So the question presented here is whether, pending a suit of the latter character, in no way involving divorce, and when the marital relation still exists, the wife, as incident thereto, is entitled to reasonable allowance for separate maintenance and to carry on her suit. Clearly, she is entitled to be supported by her husband while the marital relation exists, and to enforce her rights by suit, no other remedy being provided. The exact point now presented has, we believe, never been decided here; but we find numerous decisions in other states holding that a court may in an action for separate maintenance require the defendant to provide counsel fees and temporary support for plaintiff, though provision is made therefor by statute only in case absolute divorce is sought. It was so held in Milliron v. Milliron, 9 S. D. 181, 68 N.W. 286, 62 Am.St.Rep. 863; Dye v. Dye, 9 Colo. App. 320, 48 P. 313; Harding v. Harding, 144 Ill. 588, 32 N.E. 206, 21 L.R.A. 310; McFarland v. McFarland, 64 Miss. 449, 1 So. 508; Finn v. Finn, 62 Iowa 482, 17 N.W. 739; Glover v. Glover, 16 Ala. 440; Purcell v. Purcell, 4 H. & M. 507. In Cupples v. Cupples, 31 Colo. 443, 72 P. 1056, it was...