State ex rel. Hammond v. Worrell

Browning, Judge: This is an original proceeding in mandamus in which the petitioner, Virginia Hammond, sought a writ requiring the respondent, the Honorable Robert M. Wor-rell, 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, plaintiif in the divorce suit, was filed showing the amount of money paid by affiant to his wife, the [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 $170.00 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 $100.00 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 $100.00 a month as permanent alimony, and that the provision for continuing the temporary payments of $170.00 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 $900.00 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 seems settled. Code, 48-2-13, provides that a trial court may compel the man to pay any sum necessary for the [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; Thacker v. Ferguson, 127 W. Va. 177, 32 S. E. 2d. 47; Miller v. Baer, 114 W. Va. 566, 172 S. E. 612; State v. Isbell, 108 W. Va. 104, 150 S. E. 377; 9 W & P, Costs; 40 W & P, Suit Money; 40 W & P, Support and Maintenance. The only syllabus point in State ex rel. Cooper v. Garvin, Judge, etc., 139 W. Va. 845, 82 S. E. 2d. 612, states: “In a divorce suit in which the female litigant suffers an adverse decree, she is entitled to reasonable allowances for suit money, costs, counsel fees and support, pending the granting or refusal of an appeal by this Court; and upon the refusal by the trial court to make such allowances, she may have a writ of mandamus to compel the trial court to grant her such amounts as are reasonable and proper in the case.” See also: Kittle v. Kittle, 86 W. Va. 46, 102 S. E. 799; State v. Maxwell, Judge, 89 W. Va. 31, 108 S. E. 418; State v. Isbell, 108 W. Va. 104, 150 S. E. 377; Hatfield v. Hatfield, 109 W. Va. 212, 153 S. E. 493; and Biggs v. Moats, 117 W. Va. 14, 183 S. E. 603. Thus it is clear, and we so hold, that the petitioner is entitled to an allowance of money necessary to secure a transcript of the evidence taken at the divorce hearing, for reasonable attorneys’ fees for presentation of her petition to this Court for an appeal from the final decree of the Circuit Court of Wyoming County and other necessary court costs. . There are two provisions relating to alimony in the final decree. The fifth paragraph states: “It is ad [167] judged, ordered and decreed that until the further order of the court, Carl W. Hammond shall pay to Virginia Hammond all unpaid accrued alimony heretofore decreed up to September 1, 1958, and that thereafter he shall pay her, until the further order of this court, alimony in the sum of $100.00 per month, beginning with the month of September, 1958, to the finding of which amount the said Virginia Hammond doth except upon the ground that it is insufficient and unwarranted by the evidence. In the penultimate paragraph of the decree appears the language heretofore quoted: “* * * but the payment of alimony shall be extended as set forth in the prior temporary decree until said appeal allowed or application denied.” This Court has no original jurisdiction to fix the amount of money to be paid by a husband to his wife pending the granting or refusal of an appeal. State ex rel. Cooper v. Garvin, supra. In Wass v. Wass, 42 W. Va. 460, 26 S. E. 440, the first point of the syllabus reads as follows: “The question as to the amount of alimony pendente lite which shall be allowed the wife in a suit brought against her by her husband for divorce is one addressed to the sound discretion of the court under all the circumstances of the case, and the condition of the parties must also be taken into consideration.” The writ as limited by the rule, will be awarded requiring the respondent, the Honorable Robert M. Wor-rell, Judge of the Circuit Court of Wyoming County, to reconsider the motions of petitioner, and make these financial allowances prayed for by her: (1) Reasonable sums of money for her maintenance during the pendency of the appeal; (2) reasonable attorney fees for prosecuting the appeal; (3) the necessary cost of transcribing the testimony taken at the hearing; and (4) other necessary costs incident to the application for an appeal. The prayer of the petition in all other respects is denied. Writ awarded.