Muwinski v. Muwinski

Quinn, J.

Action by the husband to annul a marriage, between himself and the defendant, upon the contended ground that the defendant had a husband living at the time of her alleged marriage to the plaintiff. Upon motion the trial court made and filed an order directing plaintiff to pay the defendant’s attorneys $150 as attorneys’ fees *478 in the cause, and to pay to the defendant $6 per week, commencing on Monday, March • 1, 1924, as temporary alimony, pendente .lite. From such order, plaintiff brings this appeal.

In her answer the wife, coupled with a general denial, counterclaims for a divorce on the ground of cruel and inhuman treatment. She may succeed in her contention. No permanent alimony may be allowed until tbe final determination of the case. Alimony is based upon the common-law obligation of the husband to support his wife. The purpose of temporary alimony is merely to make provision for the support of the wife during the litigation. G. S. 1913, § 7120. True, the husband asks only for an annulment, but the wife denies the allegations of his complaint and asks for a divorce.

Insofar as the right to alimony, pendente lité, is concerned, where she is asserting the validity of her marriage, she may ■ invoke the power of the court to compel a provision for her maintenance until the action has been terminated. Her marriáge to the plaintiff is presumed to be legal until the contrary is shown. Temporary allowances may also be made for her counsel fees and other expenses of the litigation, which are governed by the same general principles as the allowance for maintenance.

Where the husband brings a suit for annulment and the wife defends, asserting the validity of the marriage, she may claim alimony, pendente lite, and allowance for expenses of the suit and for counsel fees. 26 Cyc. 918; Richard v. Richard, 143 Iowa 182 , 121 N. W. 525 , 26 L. R. A. (N. S.) 500, and note; North v. North, 1 Barb. Ch. (N. Y.) 241, 43 Am. Dec. 778 ; Higgins v. Sharp, 164 N. Y. 4 , 58 N. E. 9 ; Griffin v. Griffin, 47 N. Y. 134 ; Arey v. Arey, 22 Wash, 261, 60 Pac. 724 ; Lea v. Lea, 104 N. C. 603 , 10 S. E. 488 , 17 Am. St. 692; Kimble v. Kimble, 17 Wash. 75 , 49 Pac. 216 ; Hite v. Hite, 124 Cal. 389 , 57 Pac. 227 , 45 L. R. A. 793, 71 Am. St. 82; Eliot v. Eliot, 77 Wis. 634 , 46 N. W. 806 , 10 L. R. A. 508; Willits v. Willits, 76 Neb. 228 , 107 N. W. 379 , 3 L. R. A. (N. S.) 767, 14 Ann. Cas. 883.

The allowance of temporary alimony and counsel fees was within the discretion of the trial court upon the showing made and we refrain from interfering.

Affirmed.