Turner v. Turner
Before: Beatty
Synopsis
Divorce—Alimony—Counsel Fees — Discretion.—In an action for a divorce, the court has discretion to require the husband to pay alimony and counsel fees to the wife pending the suit; but such discretion is not an arbitrary power, and must be exercised in view of the circumstances and necessities of the several parties, and the pecuniary ability of the husband. Held, that, under the circumstances of this case, the allowance of fifty dollars a month alimony, and five hundred dollars counsel fees was excessive, and an abuse of discretion, the defendant’s burdens and necessities being greater, and his means and ability to sustain them being less, than are the plaintiff’s.
Beatty, C. J. These are appeals from orders granting the plaintiff alimony and counsel fees pending a suit for divorce.
Her action is upon the ground of cruelty, and there is a cross-action by the defendant upon grounds of cruelty and desertion.
The motion for alimony was based upon the pleadings, and upon an affidavit of the plaintiff, in which she alleges in the most general terms that she is in bad [142]health, unable to labor and earn a living, in indigent circumstances, and without money or other means to support herself and carry on her suit.
On information and belief, she charges that the defendant is possessed of large means.
All her allegations are so vague and general as to render it very doubtful if perjury could be assigned upon any one of them, however false they may be.
In opposition to her motion, the defendant filed his own affidavit, supported by those of seven witnesses,— apparently disinterested, and well informed as to the matters in dispute,—from which and from the pleadings it is made to appear that the plaintiff is in good health; that there are six children of the marriage, the eldest being thirteen and the youngest three years of age; that before commencing her action for divorce, she induced the defendant to convey to her the quarter-section of land upon which they had their family residence; that she thereupon turned the defendant and four of the children out of doors, allowing only two of the younger ones to remain with her; that she has since been in receipt of an income of from eight hundred to one thousand dollars per annum, rents of said quarter-section, exclusive of the dwelling-house, which she retains for her own use. One of the affiants swears that he has recently purchased from plaintiff hay to the value of $324, of which sum $174 remain due, which he has been and is willing to pay, but the plaintiff has frequently told him she does not need it.
The defendant sets out a list of all of his personal property, consisting of stock of the value of. seven hundred dollars, and farming implements of the value of five hundred dollars, and fifty dollars in money; all absolutely necessary to enable him to carry on his farm and support himself and the four children under his care. The affidavits of the other witnesses show that the land owned by defendant, and in his possession, is [143]
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