Stiehm v. Stiehm

COLLINS, J. The wife brought an action for divorce against the husband, and this is an appeal by him from an order made before trial allowing her $25 attorney’s fees, $12.50 to pay her witness’ fees and other expenses of suit, and $8 per month from the time of the commencement of the action for the support of herself and their minor child, of which she has the custody, and ordering him to pay her these sums. In the court’s order is the following finding or recital: “From the moving and opposing affidavits used upon the hearing, it does appear that the plaintiff has about the same amount of property as the defendant has.” These affidavits show that the value of the property of each is about $450, or not to exceed $500. It also conclusively appears that defendant had no employment and no income, but why he was without employment does not appear. The bulk of her property consisted of promissory notes for the sum of $400, which had been given her by him and were then due. The affidavits show quite clearly that the notes were good and collectible, and defendant [463] offered to procure for her the money for two of them, amounting to $200. It also appeared that nearly all of the household furniture was purchased with plaintiff’s money, and that defendant not only kept possession of it, but also kept most of the presents received by her at the time of the marriage. Appellant contends that under these circumstances the court abused its discretion in awarding the wife suit money and temporary alimony pending the action. While the awarding of suit money and temporary alimony before a trial on the merits is to a great extent discretionary, still the court must exercise a sound, not an arbitrary, discretion. G-. S. 1894, § 4799, provides that— “In every action brought either for a divorce or separation the court may in its discretion require the husband to pay any sum necessary to enable the wife to carry on or defend the action, or for her support during its pendency.” This statute is broader than the old equity rule, which was probably in the mind of the New York court of appeals when, in Collins v. Collins, 80 N. Y. 1, 13, it said: “The fact that a wife is destitute of means to carry on her suit, and to support herself during its pendency, is as essential as any other fact to authorize the court to award temporary alimony. This is not mere matter of discretion, but a settled principle of equity.” That the court using this language did not feel justified in abiding by it is obvious from the decision in Merritt v. Merritt, 99 N. Y. 643, 1 N. E. 605, where it was distinctly held that the fact that a plaintiff wife in a divorce action had some separate property did not bar her rights, or deprive the court of its discretionary powers upon her application for alimony pendente lite, when it appeared that such property did not come from her husband, and the income therefrom was not so great as to render all allowances unnecessary. Of course, the fact that the wife had property was a circumstance to be considered, said the court. Direct reference was made to Collins v. Collins, supra. The statute above quoted must be construed with reference to the stricter equity rule which it was designed to supersede. The [464] court cannot allow temporary alimony in “every action,” but must exercise its sound judicial discretion. The rule seems to be that, while the fact that a wife has separate property is a circumstance to be considered in determining an application for temporary alimony, if it is not sufficient to support her, and enable her to prosecute her suit, or make the proper defense, the court will still compel the husband to supply the deficiency. The fact is not necessarily controlling. 2 Am. & Eng. Enc. Law (2d Ed.) 106, with cases cited. The allowances made by the court below under the statute are of necessity largely within its discretion, and the abuse of that discretion must be plainly shown to justify us in interfering. A majority of the court feel confident that on the showing made the court below did not abuse its discretion, either in allowing suit money and alimony or in fixing the amount thereof. Order affirmed.