Bruce v. Bruce

SLOSS, J.

The plaintiff commenced this action to obtain

a divorce on the ground of extreme cruelty. The defendant having answered, the cause was tried, and the court made its interlocutory decree which, after reciting that findings had

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been waived, adjudged that plaintiff was entitled to a divorce. The decree further adjudged that the plaintiff be awarded permanent alimony in the sum of $4,500, and that to secure this sum, she have a lien on the homestead of the parties, said homestead being assigned to the defendant.

This interlocutory decree was rendered on April 20, 1910. The plaintiff was dissatisfied with the amount of alimony awarded, and with the disposition of the homestead. Asserting her intention to appeal from the portions of the decree dealing with these matters, she applied to the court, upon notice duly given, for an order directing the defendant to pay her a reasonable sum for attorney’s fees and expenses of her appeal, and for her support pending said appeal. The motion came on for hearing on May 23, 1910. It was supported by affidavits and by oral testimony. The defendant opposed the making of an order requiring him to pay the plaintiff any money, except upon condition that it be allowed as a credit upon the $4,500 awarded as alimony. The court made its order directing the defendant to pay to plaintiff, as alimony, pending determination of the appeal, or until the further order of the court, the sum of twenty-five dollars monthly. It further ordered the payment of the expense, not exceeding sums named, of printing a transcript and a brief on appeal, and the payment of $125 for fees of plaintiff’s attorney on appeal.

The present appeal is taken by the defendant from this order.

The defendant’s sole contention is that the court was without jurisdiction to make the order complained of. It is argued that after the entry of judgment in an action for divorce, the court’s power with respect to alimony is limited to modifying or changing the order already made and that the order under review did not purport to modify or change the original judgment. • '

The claim is absolutely without merit. It is based upon section 139 of the Civil Code, which has no application to orders for payments during the pendency of the action. Section 137 provides in express terms that "when an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute