Goldsmith v. Goldsmith

6 Mich. 285, 1859 Mich. LEXIS 12

• Court: Michigan Supreme Court
• Decided: May 7, 1859
• Status: Published

Opinion

Manning J.:

The power to allow temporary alimony pending proceed-, ings for a divorce, and to compel the husband to furnish the. Wife with pecuniary means to defend or prosecute the suit on her behalf, is incident to divorce cases. It is necessary to the-ends of'justice. "Without this power in the Court, the wife-that should have no separate property of her own, would be. without the requisite means of prosecuting or defending the-, suit, and of supporting herself in the mean time. The statute-relative to divorces says: '“The Court may, in its discretion, require the husband to pay any sum necessary to enable the-Wife to carry on or, defend the suit during its pendency,” but makes no mention of temporary alimony. So far as the stat-. ute goes, it is only confirmatory of the common law, which had been acted upon by our courts before we had any statu-, tory provisions on the subject. — Story v. Story, Walk. Ch. 421.

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The decree below having been adverse to the wife is not, we think, of itself a sufficient ground for denying the motion. The certificate of two counsel shows the appeal was taken in good faith. We think this sufficient to warrant us in exercising-the discretion with which we are vested.†

The other Justices concurred.

Motion granted.

On a subsequent day, on affidavits showing that defendant had been guilty of repeated acts of adultery pending this appeal, Maynard moved for an order vacating the allowance of alimony above made.

The counsel for defendant, now declining any further to appear in the case, the Court, on looking over the affidavits, granted the motion.

See also McGee v. McGee, 10 Ga. 477; Patterson v. Patterson, 1 Halst. Ch. 389; Amos v. Amos, 3 Green Ch. 171; Mix v. Mix, 1 Johns, Ch. 108; and North v. North, 1 Earb. Ch. 241.

The wife is entitled to temporary alK monyup to final decree, notwithstanding a jury, upon a feigned issue, has given a vor-.. diet of adultery against her. — Stanford v. Stanford, 1 Edw. Ch. 317. And see, Williams v. Williams 3 Barb. Ch. 628.