Argabrite v. Argabrite

STURTEVANT, J.

The plaintiff commenced an action against the defendant for a divorce on the ground of cruelty.

[651]

The trial court granted to the plaintiff a decree; thereafter the defendant made a motion in the trial court that the plaintiff be directed to pay her moneys for her support pending an appeal, moneys for her expenses on appeal, and moneys to employ an attorney to present her appeal. The trial court refused to make an order and from the order of the trial court so refusing to make such order for maintenance, etc., the defendant has appealed. The defendant served a written notice of the time and place and nature of her motion, and thereafter made her motion for the relief above specified. At the time of the hearing of said motion the defendant read in evidence her notice of motion, and her affidavit in support thereof, and she also read in evidence the complaint, the answer and cross-complaint, the answer to the cross-complaint, an order for alimony, costs and counsel fees in the trial court, notice of intention to move for a new trial, the findings, and the judgment. In reply the defendant read his affidavit. The plaintiff’s complaint is somewhat long and it will suffice for the purposes of this opinion to state that it purports to charge acts of extreme cruelty, specifying the nature of the acts and the time and place of the commission of said acts, and which acts extended over a period of time 1914—1917, both dates inclusive. The findings of the trial court were in favor of the plaintiff and found the facts in plaintiff’s favor in the language of the plaintiff’s complaint. The allegations of the defendant’s cross-complaint purported to plead a cause sounding in extreme cruelty, and enumerating acts covering the same period as the complaint. The trial court’s findings were in favor of the plaintiff and against the defendant, and the findings were in accordance with the answer of the plaintiff to the defendant’s cross-complaint. In the defendant’s affidavit she set forth that the income of the ■ plaintiff was $350 per month, and in his affidavit the plaintiff set forth that his income was $215 per month. In her affidavit the defendant set forth, among other things, an affidavit of merits. The foregoing constitutes the evidence that was placed before the trial court on the hearing of the motion, which was denied. It is recited in the findings, and also in the judgment, that the ease in chief was tried before the trial judge sitting without a. jury; that plaintiff appeared by his attorney and the defendant appeared by her