Kowalsky v. Kowalsky

SHAW, J.

In this action for divorce the defendant appeals from an order requiring him to pay to the plaintiff the sum of one hundred dollars a month for her support during the pendency of the action and the further sum of two hundred and fifty dollars for counsel fees.

If we were hearing an appeal on the merits we might be disposed to scan carefully the allegations of cruelty to determine whether a cause of action is well stated. But the marriage is admitted in the answer, and a cause of action for extreme cruelty is sufficiently stated to make out a

prima facie

case. The purpose of allowing alimony to the wife during the pendency of the action is to enable her to live in the mean time and to employ counsel who can properly present her case to the court, both in the pleadings and .in the introduction of evidence. The merits of the case, where there is no issue as to the marriage, will not be considered on an application for such alimony further than is necessary to determine that the wife is proceeding in good faith and not for the mere purpose of obtaining money from the husband.

(Storke

v.

Storke,

99 Cal. 622;

Langan

v.

Langan,

91 Cal. 654;

Poole

v.

Wilbur,

95 Cal. 339;

Hite

v.

Hite,

124 Cal. 389.

1

)

The direction that the counsel fees allowed be paid “to the plaintiff or to her counsel,” while inaccurate in expression, is not a sufficient irregularity to justify the interference of this court. The addition of the words “or to her counsel” does not change the character of the order as an allowance to the plaintiff, and was probably intended only to indicate that her counsel should have authority to receive the money. Counsel would have the authority although the order was silent in regard to the matter, and hence the addition was