Cupples v. Cupples

Supreme Court of Colorado

Cupples v. Cupples

31 Colo. 443

CourtSupreme Court of Colorado

DecidedApril 15, 1903

DocketNo. 4474

StatusPublished

Cited by1 cases

This text of 31 Colo. 443 (Cupples v. Cupples) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cupples v. Cupples, 31 Colo. 443 (Colo. 1903).

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Opinion

Mr. Justice Steele

delivered the opinion of the court.

The plaintiff brought suit against her husband for separate maintenance. In his answer and cross-complaint he denied the allegations of the complaint, set up new matter, and prayed for a divorce. After the filing of the answer and cross-complaint the plaintiff was awarded counsel fees in the sum of $125.00 and temporary alimony in the sum of $25.00 a month. From the order allowing alimony the defendant has appealed to this court. The assignments of error are that the award of alimony is unjust because it appeared from the testimony that the plaintiff had property which she had obtained from defendant in an [444]*444amount sufficient to support her, and because from the defendant’s cross-complaint it appeared that the defendant was entitled to a divorce and the plaintiff was therefore not entitled to alimony.

From the defendant’s own statement it appears that he was earning the sum of about ninety dollars each month ánd had property worth about three thousand dollars. There was testimony upon which the court could have based a finding that the value of the defendant’s property was greater than'the amount at which he fixed its value. We cannot say, therefore, that the court abused his discretion in awarding temporary alimony; and this court will not interfere with an order allowing temporary alimony unless it shall appear that there has been a clear abuse of discretion or violation of the law by a lower court in the order made.—Cowan v. Cowan, 10 Colo. 540.

The fact that the defendant has set forth facts which, if established, entitle him to a divorce is not a reason for the disallowance of alimony. It has been repeatedly held by this court that the merits of the controversy between husband and wife cannot be inquired into upon an application for temporary alimony, and the court before whom the suit is pendinglias authority to make such order concerning temporary alimony as may be reasonable and just.

The judgment is affirmed. Affirmed.

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Mr. Justice Steele

delivered the opinion of the court.

The plaintiff brought suit against her husband for separate maintenance. In his answer and cross-complaint he denied the allegations of the complaint, set up new matter, and prayed for a divorce. After the filing of the answer and cross-complaint the plaintiff was awarded counsel fees in the sum of $125.00 and temporary alimony in the sum of $25.00 a month. From the order allowing alimony the defendant has appealed to this court. The assignments of error are that the award of alimony is unjust because it appeared from the testimony that the plaintiff had property which she had obtained from defendant in an [444]*444amount sufficient to support her, and because from the defendant’s cross-complaint it appeared that the defendant was entitled to a divorce and the plaintiff was therefore not entitled to alimony.

From the defendant’s own statement it appears that he was earning the sum of about ninety dollars each month ánd had property worth about three thousand dollars. There was testimony upon which the court could have based a finding that the value of the defendant’s property was greater than'the amount at which he fixed its value. We cannot say, therefore, that the court abused his discretion in awarding temporary alimony; and this court will not interfere with an order allowing temporary alimony unless it shall appear that there has been a clear abuse of discretion or violation of the law by a lower court in the order made.—Cowan v. Cowan, 10 Colo. 540.

The fact that the defendant has set forth facts which, if established, entitle him to a divorce is not a reason for the disallowance of alimony. It has been repeatedly held by this court that the merits of the controversy between husband and wife cannot be inquired into upon an application for temporary alimony, and the court before whom the suit is pendinglias authority to make such order concerning temporary alimony as may be reasonable and just.

The judgment is affirmed. Affirmed.

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Bluebook (online)

31 Colo. 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cupples-v-cupples-colo-1903.

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