Sheppard v. Sheppard

ANGELLOTTI, J.

This is an appeal by plaintiff from an order made after judgment and on July 11, 1910, requiring plaintiff to pay defendant the sum of fifty dollars per month, alimony

pendente lite,

from December 17, 1909, to and including the final determination of the cause, which was then pending on appeal, three hundred and fifty dollars thereof (being the amount due to and including July, 1910), to be paid forthwith, and fifty dollars on the first day of each subsequent month; also fifty dollars costs and one hundred and fifty dollars attorneys’ fees, to be paid forthwith.

[350]

No question is raised on this appeal as to the correctness of the order in so far as it gives defendant the amounts specified for costs and counsel fees, the only question being as to the alimony

pendente lite.

The material facts are as follows: Plaintiff commenced an action for divorce against defendant. Defendant by her answer denied the charges made against her by plaintiff, and by cross-complaint sought an allowance for her maintenance and support. The trial court found against plaintiff, and also found that he had willfully deserted and abandoned defendant, and that fifty dollars per month was reasonably necessary to provide defendant with the common necessaries of life, and that such amount was a reasonable sum to be allowed her for her support and ‘maintenance. This decision was rendered on December 15, 1909, and on the same day judgment was given denying plaintiff relief, and awarding defendant “permanent alimony at the rate of fifty dollars per month, . . . for her maintenance and support, . . . and continuing during the natural life of said” defendant. The judgment also gave her one hundred and fifty dollars attorneys’ fees and costs. Plaintiff appealed from this judgment to this court and stayed the execution thereof by giving such an undertaking therefor as is required by law. Thereupon defendant made the motion for alimony pending such appeal, resulting in the order here under review, stating in her affidavit that the sum asked by her, fifty dollars per month, is necessary for her maintenance and support, and that it is the amount of permanent alimony ordered paid her by the judgment. The evidence before the court on the hearing of the motion was sufficient to warrant the conclusion that such sum was reasonably necessary for the support and maintenance of defendant, that she had no means of support, and that plaintiff was financially able to pay said sum. Upon these facts the trial court made the order here under review.