Stewart v. Stewart

• Decision Date: 20 November 1911
• Citation: 141 S.W. 193,101 Ark. 86
• Parties: STEWART v. STEWART
• Court: Arkansas Supreme Court

141 S.W. 193

101 Ark. 86

STEWART v. STEWART

Supreme Court of Arkansas

November 20, 1911

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Geo. L Basham, for appellant.

1. The chancery court was without jurisdiction to allow temporary alimony after the decree for divorce was rendered and while same was still standing in full force and effect. There was then no "pendency of an action for divorce." Kirby's Digest, § 2679; 102 Ala. 353; 34 Minn. 441.

2. If the proceedings to set aside the decree can be construed to bring the question of alimony, etc., within the meaning and intent of the statute supra, then the order granting appellee alimony, etc., was nevertheless erroneous, because no sufficient grounds are shown why the decree should be set aside. 2 Bishop on Marriage and Divorce, § 932; Id. § 1 556; Id. § 1557; 30 Ark 73; 2 Paige 454; 3 Enc. Pl. & Pr. 630; 70 N.Y. 8.

Terry Downie & Streepey, for appellee.

1. In its decree granting the divorce the court retained "control of the cause for such further orders and proceedings as may be necessary to ascertain definitely, and enforce the rights of the parties hereto in the property herein referred to."

The decree was therefore not entirely conclusive, but so far as the property rights of the parties are concerned is still pending, and appellee is entitled to alimony upon application and a proper showing that she is entitled to it. Kirby's Digest, §§ 2679, 6259; 44 Ark. 46.

2. The allegations in the petition are sufficient. Conceding that, where both parties have had their day in court and the question in dispute is determined, the losing party can not ask that the judgment be set aside because it was rendered upon false testimony, yet that principle will not bar a party who was never notified of the pendency of the suit and has had no opportunity to interpose a defense. Sufficient ground is also set up in the allegation that, though appellant well knew the address of the appellee yet she was never notified of pendency of the suit, and that the attorney ad litem who was appointed made no effort to inform her. Kirby's Digest, § 6254; 23 Wis. 452; 59 Ark. 5; 73 Ark. 281; 11 Am. Rep. (Mass.) 393.

OPINION

MCCULLOCH, C. J.

Appellant, John F. Stewart, in December, 1910, sued his wife, the appellee, Sarah G. Stewart, in the chancery court of Pulaski County, Arkansas, for a divorce, on the alleged ground of wilful desertion, and on February 17, 1911, the court rendered a decree in accordance with the prayer of the complaint.

Appellee resided at Topeka, Kansas, and the decree was based upon constructive service. In July, 1911, appellee filed a petition in the chancery court to have said decree annulled on the alleged ground that it was obtained by fraud, and she also asked for an allowance for maintenance and attorney's fees, etc., during the pendency of the proceedings.

The court made an order directing appellant to pay appellee an allowance of $ 25 per month during the pendency of the proceedings, also $ 50 for attorney's fees and $ 15 for other expenses of suit. From this order of allowance an appeal has been prosecuted.

It is insisted, in the first place, that the court could not make an allowance for temporary alimony, etc., without first setting aside the decree for divorce. Our statute provides that "during the pendency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys." Kirby's Digest § 2679. We think it is clearly within the spirit of the statute to treat the petition to set aside the divorce decree on the ground of fraud as being during the pendency of the action for divorce, so far as relates to the power of the court to make an allowance for maintenance and expenses of the litigation. The manifest purpose of the statute is to provide for the wife's maintenance so long as the status of the parties is in litigation, and while proceedings are pending to set aside the divorce decree on account of fraud the pendency of the litigation continues. Learned counsel for appellant relies upon Golden v. Golden, 102 Ala. 353, 14 So. 638, as sustaining his contention that the court should not have made the allowance. In that case, however, it appears that the wife filed a petition to cancel the divorce decree and to obtain alimony, and the court refused to set aside the decree, but made a permanent allowance as alimony, and the Supreme Court of Alabama held that it was error to do so. That decision was clearly correct, because when the court refused to set aside the divorce decree the litigation ended, and no allowance for alimony should have been made. In the present case, however, the chancery court did not decline to set...