Rohrback v. Rohrback

Robinson, J.,

delivered the opinion of the Oourt.

A hill was filed in this case hy the husband to obtain a divorce a vinculo matrimonii, on the ground of desertion hy the wife. The case was heard on hill, answer and proof, and the Court below, being of opinion that the husband was not entitled to a divorce as prayed, dismissed the bill, and from the decree dismissing the bill, the husband toot an appeal.

After the appeal had been taken, a petition was filed hy the wife, alleging that she was entirely destitute of means to employ counsel, and to pay the costs incident to the appeal; that her husband was possessed of large and valuable property, consisting of real estate, stock in trade, bank stock, and private securities, amounting to between forty and forty-five thousand dollars, and while forbearing to ask for alimony, she prayed that her husband might be directed to pay to her, a reasonable sum of money for counsel fees and costs. This petition the Court dismissed, ivithout regard to its merits, on the ground that, an appeal having been taken from the order dismissing the husband's bill, the Court had no longer any jurisdiction in the premises. The right of a wife to a reasonable allowance for counsel fees and costs in proceedings of this kind, is well settled in this Sate. This, indeed, was not and could not he disputed. So the only question here, is whether the-petition of the wife was *319 too late, having been filed after an appeal from the one dismissing the bill. Now, the Code provides that applications for alimony ÍCare tobe heard and determined,” in as full and ample manner as such questions could be heard and determined by the Ecclesiastical Courts in England. And it is well settled that alimony may be allowed to the wife on application by her, after an appeal from an order or decree dismissing a bill in divorce proceedings. This was decided in Jones vs. Jones, L. R., 2 Pro. & Div., 337. In that case, an application was made by the wife for alimony after an appeal had been taken by her from an order dismissing her petition for a judicial separation; and Mellor, J., said: “ As regards alimony under such circumstances as the present, so long as the wife continues a wife, there is no real reason why she should not have alimony, and it is due to her until on the petition there is a final decision against her.”

(Decided 4th February, 1892.)

And such seems to be the practice in this country. 2 Bishop on Marriage and Divorce, sec. 392. The wife could not, in fact, make application for counsel fees and expenses incident to the appeal, until after the appeal had been taken, because she could not have known in this case, that the husband intended to appeal from the decree of the Court below dismissing his bill. And although the appeal was taken, the Court still had jurisdiction of the parties, and having jurisdiction, it had the power to determine the question as to the right of the wife to an allowance for counsel fees and costs.

The order of the Court below dismissing her petition was a determination by the Court as to her rights in the premises, and from such an order an appeal will lie to this Court. ’

Order reversed, and cause remanded.