Lake v. Lake

By tbe Court, Belknap, J.:

In a suit for divorce between tbe parties hereto, a decree was entered in favor of tbe plaintiff, dissolving tbe bonds of matrimony between herself and defendant, and awarding ber tbe custody of their offspring, but adjudging a la,rge estate, claimed by plaintiff as community property, to be tbe separate property of tbe .defendant husband.

Dissatisfied with tbe portion of tbe decree touching tbe question of property, and desiring to proceed further thereupon, and being destitute of means, tbe district court ordered defendant to pay plaintiff’s attorney for services to be rendered in such further proceedings tbe sum of six hundred dollars, which amount tbe court found to be a reasonable and proper fee.

From this order defendant lias appealed.

. Preliminary to tbe bearing of the appeal plaintiff has asked this court to make its order directing defendant to pay to ber attorney tbe further sum of two hundred dollars, which amount is admitted to be a reasonable counsel fee for an appeal of this nature. Substantially the same reasons are urged against tbe allowance of tbe motion by this court as are urged against tbe order from which tbe appeal is taken. Tbe appeal and tbe motion will, therefore, be considered together.

*366 The first question presented relates to the sufficiency of service of the notice of hearing of the application for counsel fees. The service of notice was made upon the defendant, personally, instead of his attorney of record in the suit. The statute relating to marriage and divorce, as amended at the session of the legislature of 1865, provides that the district courts may at any time after the filing of the complaint in a divorce suit, and after “due notice shall have been given to the husband or his attorney,” require the husband to pay such sums as may be necessary to enable the wife to carry on or defend the suit, etc. (Comp. L., sec. 220.) Subsequently, and at the session of the legislature of 1869, the present civil practice act became a law. This act, in relation to the service of papers, at section 500 (Comp. L., sec. 1561), provides:

££•;<• * * * But in all cases where a party has an attorney in the action or proceeding, the service of papers, when required, shall be upon the attorney, instead of the party. * * *” This latter statute must be construed as regulating the service of notice directed to be made by the statute of 1865. If the party has an attorney in the action, the service must be made upon such attorney, instead of the party. Tested by this requirement, the service of notice •in this proceeding was insufficient. The defendant appeared by counsel at the hearing of the motion, and objected thereto, upon the ground of the insufficiency of the-service.

It appearing to the court, that the defendant had handed the notice to his counsel the day before, the court asked counsel whether he required any additional time to prepare for the hearing. Counsel replied that he did not, and consented that the hearing should proceed subject to his objection touching the service of notice. The court, however, held the service sufficient, and directed the hearing to proceed.

In this ruling the court erred. For the reason stated the service was insufficient, but the ruling was not such error as warrants a reversal of the order appealed from. The object of the notice was to bring the defendant into court at *367 a time when be, presumably, would be prepared to proceed with tbe bearing. Tbe notice bad tbe' effect of bringing, bim into court, and wlien tliere be stated in substance that be was prepared to proceed with the case. Thus tbe notice accomplished its purpose. Tbe ruling was technically erroneous, but as it could not have prejudiced tbe defendant it must be disregarded.

Tbe next objection involves tbe question of the authority of tbe court to allow counsel fees in a suit in which an order bad previously fixed such fees. Tbe statute provides that tbe court or judge may, “ at any time after tbe filing of tbe complaint, require tbe husband to pay such sums as may be necessary to enable tbe wife to carry on or defend” tbe suit, etc. ,

At common law a wife destitute of means was entitled to an allowance sufficient to enable her to defray her expenses in tbe suit. Tbe power, to make such allowance was considered incident to divorce suits, and tbe allowance appears to have been made as frequently as Circumstances required. In Graves v. Cole, 19 Pa. St. 173, tbe supreme court of Pennsylvania, proceeding according to tbe common law, declared: “Tbe court, having jurisdiction of tbe suit between tbe liusbaud and wife, is, from time to time, to make tbe proper allowance according to the circumstances.”

Tbe statute of this state is only affirmatory of tbe common law. Under a similar statute in .the state of New York, Judge Woodruff held, in the progress of tbe divorce suit of Forrest v. Forrest, that although “ alimony pendente lite bad once been fixed and allowed to tbe plaintiff, tbe amount may be altered and increased, upon its appearing that tbe necessities of the plaintiff require it, and the amount of defendant’s property is such that tbe increased allowance is reasonable.” ( 5 Bosw. 672 ; Morrell v. Morrell, 2 Barb. 480 .) Tbe reasonableness of this rule is illustrated by tbe present case.

At tbe commencement of this litigation, tbe court directed defendant to pay plaintiff’s counsel a fixed fee, which probably at that time appeared to the court to be a proper fee for tbe trial of tbe cause. Afterward tbe court made a fur *368 ther and greater allowance for the same purpose, and finally ■the court made the order from which this appeal is taken. It would appear from these facts that the controversy has been more protracted and severe than was anticipated when the first allowance was made. In the early stages of the cause it may have been impossible to have approximated the proper amount of money necessary for the expenses of litigation. Justice to both parties, therefore, requires that orders of this nature should be made as demanded by the changing circumstances of the base.

Objections are also made to the order, upon the ground that an allowance for counsel fees to further prosecute a matter which had been determined adversely to plaintiff, was an abuse of discretion in the court, and that no authority existed to make such order after the entry of the decree of divorce and when the parties were no longer husband. and wife.

The object of the law is, to afford a wife without means the funds necessary to prosecute or defend suits of this nature. This object would be frustrated, if, after a decree of divorce were rendered, courts should withhold from her the means necessary for a reasonable review of the proceedings. She is entitled to proper allowance so long as the cause is pending and until it is finally determined. (Forrest v. Forrest, 5 Bosw. 672 ; Jenkins v. Jenkins, 91 Ill. 167 ; Phillips v. Phillips, 27 Wisc. 252; Goldsmith v. Goldsmith, 6 Mich. 286 )

Nor did the court abuse its discretion in making the allowance. The fact, that a decree of. divorce had passed against the wife, was not considered sufficient ground in the authorities cited to deny an allowance for counsel fees for appeal.

In this case, strong reasons would appear to exist for affording the wife means to'take such further proceedings as she may be advised are proper. She had obtained a decree of divorce in her favor, but in the opinion of the district court, the property involved was the separate property of the husband, and for .this reason none of it was awarded to her. The importance of the result'of this branch of- the suit to plaintiff, in connection with the fact that the further *369 proceedings appear to have been contemplated in good faitb, and not vexatiously, are matters which doubtless addressed themselves to the sound discretion of the court, and justify its action.

No statutory provision authorizes an allowance for counsel fees in this court. But such right has been exercised by courts of similar jurisdiction in conformity with the decisions of the ecclesiastical courts of England. (Goldsmith v. Goldsmith , and Phillips v. Phillips, supra.) The exercise of such authority is based upon the presumption, that jurisdiction in divorce cases carries with it by implication the incidental power to make such allowances. The power is indispensable to the proper exercise of jurisdiction in guarding the rights of wives.

The order of the district court is affirmed and the motion of respondent allowed. ‘ '•