Van Meter v. Van Meter

• Decision Date: 02 March 1916
• Citation: Van Meter v. Van Meter, 168 Ky. 783, 182 S. W. 950 (Ky. Ct. App. 1916)
• Parties: VAN METER v. VAN METER.
• Court: Kentucky Court of Appeals

182 S.W. 950

168 Ky. 783

VAN METER v. VAN METER.

Court of Appeals of Kentucky.

March 2, 1916

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by Lillie M. Van Meter against Clinton B. Van Meter for alimony alone, with answer and counterclaim for absolute divorce. Judgment for plaintiff for alimony, and defendant appeals. Dismissed.

Henry W. Sanders, of Louisville, for appellant.

Boyce Watkins, of Louisville, for appellee.

CARROLL J.

The parties to this appeal are young people and husband and wife. They were married on January 22, 1914, and in September 1914, the appellee brought this suit for alimony alone charging that the appellant refused to live with her or make suitable provision for her support, and that the wife had the right to bring this suit for alimony alone is settled in Hulett v. Hulett, 80 Ky. 364, and many other cases. The appellant, in his answer and counterclaim, filed in October, 1914, denied that he had abandoned his wife or refused to support her, and sought a divorce from bed and board on the ground that she had failed and refused to live with him. After the issues had been made up, the evidence was taken, and it shows that the differences between this couple which caused their estrangement and this litigation were both childish and trivial. When the case was submitted, the chancellor entered the following order, on March 27, 1915:

"It is considered and adjudged by the court that the plaintiff, Lillie M. Van Meter, recover of the defendant, Clinton B. Van Meter, judgment in the sum of $4 per week alimony and her costs herein expended, for all of which she may have execution."

From this order the husband, as appellant here, prosecutes this appeal, and the question arises: Has this court jurisdiction of the appeal?

It is provided in section 950 of the Statutes:

"* * * But no appeal shall be taken to the Court of Appeals as a matter of right from a judgment for the recovery of money or personal property, or any interest therein, or to enforce any lien thereon, if the value in controversy be less than $500, exclusive of interest and costs. * * * In all other civil cases the Court of Appeals shall have appellate jurisdiction over the final orders and judgments of the circuit courts: Provided, however, that the Court of Appeals may grant an appeal when it is satisfied from an examination of the record that the ends of justice require that the judgment appealed from should be reversed; or when the construction or validity of a statute or the construction of a section of the Constitution is necessarily and directly put in issue, and a correct decision of the case cannot be had without passing on the validity of the statute or construing the section of the Constitution or statute involved, if the value of the amount or thing in controversy, exclusive of interest and costs, is as much as two hundred dollars."

It has also been written in a number of cases that the amount in controversy, when the defendant appeals, is the amount of the judgment against him. But, in cases like this, where the court, by an order that is not final but remains under the control of the court, to be set aside or modified at discretion, directs the payment of a certain sum each week or month without fixing any time when the payment shall stop or fixing how long it shall continue, and no one of the sums ordered to be paid is large enough to give the court jurisdiction, it is obvious that the amount in controversy, if an appeal is to be allowed at all, cannot be determined by the statutory rules applicable when the judgment is final and fixes a definite amount to be paid, either at once or in installments, or fixes definitely the amount that is recovered.

It will be observed that the order in this case does not fix the time for which the $4 a week shall be paid, and it is the well-settled practice in this state, and generally prevailing, that orders of court directing the husband to pay weekly, monthly, or quarterly a specific amount as alimony are under the control of the court and may at any time, in the reasonable discretion of the court, and for good cause, be set aside, or the amount directed to be paid may be increased or diminished. In short, it is an interlocutory and not a final order; and therefore, if the question were an open one in this state, it might well be doubted if an appeal would lie in any case from an order allowing alimony, although the amount allowed was sufficient to give this court jurisdiction.

But the question is not an open one, as it has been often written that, when the court enters an order directing the payment at one time of a sum within the jurisdiction of this court, an appeal may be prosecuted to this court, as such an order is a judgment for the recovery of money. It was so held in Lochnane v. Lochnane, 78 Ky. 467, where the court said:

"That an appeal may be taken from a decree making an allowance to support the wife pending a suit for divorce cannot be questioned. It possesses all the essential elements of a final

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