In re Kelsey

43 P. 106, 12 Utah 393, 43 P.R. 106, 1895 Utah LEXIS 26

• Court: Utah Supreme Court
• Decided: December 21, 1895
• Docket: No. 655
• Status: Published

Opinion

' KING, J.:

An action for divorce was brought against the petitioner by Sadie Kelsey. The petitioner specifically denied that there had been a marriage between him and the plaintiff. Upon application for temporary alimony and suit money, the court ordered that, until the further order of the court, defendant in the action should pay $40 per month to plaintiff, and that within 20 days from September 30, 1895, he should pay the further sum of $?5 suit money and $200 counsel fees. On the 1st day of October, 1895, said defendant filed and served in due form a notice of appeal from such order, and made application to the court to fix the amount of a supersedeas bond in order to stay proceedings pending an appeal; but the court, being of opinion that the decision rendered in the cause was not a final judgment, declined to fix the amount of said bond. Thereupon defendant duly filed an undertaking on appeal from said decision in the sum of $300, conditioned to pay all damage and costs which might be awarded against him on appeal, and also an undertaking in the sum of $2,000' to stay proceedings upon said appeal, which contained the proper statutory conditions. No exceptions to the bonds, either as to form or sufficiency of the sureties, were ever taken. Defendant, having failed to pay the money as ordered by the court, was, after hearing upon citation, adjudged guilty of contempt of court, and committed to the marshal, to be by him confined and imprisoned in the penitentiary until the order of the court was obeyed. Application was made to one of the justices of the supreme court for a writ of hateas corpus, and the petitioner released upon giving a bond in the sum of $2,000, conditioned to abide the decision of the supreme court to-be made upon the hearing of said application.

It is conceded by counsel for the petitioner that the only question presented for the consideration of this court-is: Did the district court have'authority and; jurisdiction over the petitioner to adjudge him guilty of contempt? That involves the further questien, and the only one to be considered: Was the order of the court for the payment of alimony pendente lite, suit money, and counsel fees a final judgment? If it was then an appeal would lie; .and if the petitioner followed the statutory steps relating to appeals, the lower court had no jurisdiction to institute contempt proceedings, or punish for disobedience of said judgment.

Section 3635, 2 Comp. Laws, provides that “ an appeal may be taken to the supreme court from the district court, first, from a final judgment in an action or special proceeding commenced in the court in which the same is rendered. * * * Third, from an order granting or refusing a new trial, from an order granting or dissolving •an injunction, from an order refusing to grant or dissolve an injunction, from an order dissolving or refusing to dis•solve an attachment, from an order granting or refusing to grant a change in the place of trial, from any special order made after final judgment, and from an interlocutory judgment in actions for partition of real property, and from an order confirming, changing, modifying or setting aside the report, in whole or in part, of the referees in actions for the partition of real property, in the cases mentioned in the provisions of this Code. * * * ”

Counsel for petitioner insist that the order entered by the lower court in the divorce proceedings was a final judgment, because, as it was argued, it possessed all the essential elements of a final judgment, and could be enforced by execution in the same manner as judgments rendered in ordinary actions for the recovery of a specific sum of money. In support of this position, counsel cite the cases of Sharon v. Sharon, 67 Cal. 185, 7 Pac. 456, and 8 Pac. 709; Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657; also, cases from Illinois, Arkansas, and Kentucky. "The statute of California is identical with ours, and it is urged that we should follow the construction given the statute by the supreme court of that state. We entertain great respect for the decisions of that court, and have, from the beginning of the territory, manifested that-respect by accepting, in very many adjudications by this court, the views by it enunciated; and because much of our Code was borrowed from California, and many of its provisions came charged with a construction by the supreme-court of that state, we have with almost unbroken uniformity adopted such construction. But in this case the-statute above quoted, while copied from the California code, had not been construed at the time it was enacted' by our territorial legislature. Therefore we feel at liberty to decide this question unembarrassed and untrammeled by any decision from our sister state.

In the case from California above referred to, it is decided that the order of the court for alimony pendente lite,. together with counsel fees, is a final judgment, and therefore an appeal will lie. A dissenting opinion was written by Judge McKee, the reasoning of which we think sound, and from which we quote with approval. Judge McKee-says:

“Besides, the interlocutory character of the order appealed from is not changed by' the fact that it commands-payment of a large sum of money. Nor is it affected by the provision of the Code as to thq process by which it. may be enforced. It is the execution which may be issued upon the order to which the Code gives the same legal, effect as if issued upon a final judgment; but it does not-give to the order the effect of a final judgment. The-order is unchanged in its nature by the remedy adopted ’for enforcing it, and the execution is given merely as an. additional remedy for that purpose. As an additional-remedy, the court making the order is not bound to resort, to it. Especially, in actions of divorce, it is left to the discretion of the court to enforce an order made pendents lite by execution, or by proceedings in contempt for not complying with it, or by requiring reasonable securities for making the payment of the money, or by the appointment, of a receiver, or by any other remedy applicable to the case. * * * Moreover, a judgment is the final sentence, of the law in an original suit.

“ A money judgment is a legal demand or a record debt upon which suit may be brought. The money order in this case is for alimony. Alimony is not an original suit. It arises out of some other suit, in which a marriage de facto is confessed or proved. The allowance of alimony pending such a suit is not a debt.. It is a legal liability which arises out of the obligation imposed by law upon every married man to contribute to the support of his wife. When the fact of marriage is judicially ascertained, the jurisdiction of the court to award alimony pendente lite, as incidental to the suit before it, may be called into exercise by the motion of the wife; and the court in the exercise of its jurisdiction may award it out of the community property, or the separate property of the husband. In making the award, the court acts upon the principle that, the husband and wife are jointly interested in the property and fortunes of the community, and that one is as much entitled as the other to maintenance and support out of it. during the proceedings between them for a separation. So-that allowing the wife alimony is only awarding her what, she as a wife is lawfully entitled to. Her rights of property in the community estate are vested until divested by judicial decree which dissolves the mairiage status, and makes distribution of the estate.”

Under the various definitions of final judgment, as given to us by the courts and law writers, it seems clear that the order in question cannot be included. When an order is made pending the cause, and before a final hear-, ing on the merits, it is interlocutory in every sense of the-word. It is not a final decree disposing of tbe canse, either by sending it out of court before a hearing is had on the merits, or after such hearing decreeing either in favor of or against the prayer of the petitioner. The application for alimony pendente lite, in this case, is merely an incident to the action brought by plaintiff. It is so co-ordinated with it that it becomes inseparable from it. It is a mere shadow, following the substance, which is the original bill for separation. Because the order of the court may be enforced by execution does not deprive it of its interlocutory character. It certainly is as much of an incident to the main case as the examples given in subdivision 3 above quoted, and which the statute clearly denominates interlocutory orders. And, though execution may issue, it does not possess the element of finality. It determines no issue, and is a final adjudication of no question. It may be changed, or entirely set aside. It can be modified upon application, or upon the court’s own motion, as it exercises absolute control over it. And it must not be forgotten that the sole purpose of alimony pendente lite, and an order for suit money, is to enable the spouse to meet the case presented. No better argument can be offered to show the -interlocutory nature of this order than to state that it is made to enable the party to try the cause which will result in a final judgment.

Much of the argument of petitioner’s counsel is devoted to showing the hardship which may result from an unjust order. But because a judge may award an exorbitant sum is no argument against the courts power. It might be an argument of convincing and overwhelming force, when made before a legislative body as a reason for amending the statute relating to appeals. It is a discretionary power, possessed by the courts, to award or refuse temporary alimony. The legislature has seen fit to repose confidence and confer this power; and even ii its abuse were conceded, it ought not to more the court to legislate words into the statute. There is also another view to be suggested relative to this question. Every wife who alleges statutory grounds for a divorce is entitled to present her grievances to the court. And she is entitled to support from the property of her husband, or the community property, until the final order of the court. A dismissal of the case or its indefinite postponement ought not to be*1 the penalty to be visited upon her because of poverty or inability to prosecute the suit for lack of means, when the husband may be in possession of ample property. If appeals are permitted from these interlocutory orders granting alimony pendente lite, worthy persons, entitled to divorce, by appeals and the e‘ law’s delays,” would be not only prevented from prosecuting their actions but deprived of sustenance pending final hearing. We merely mention- this because of the emphasis given by counsel to the matter of the hardship resulting from the denial of an appeal.

Mr. Freeman, in his work on Judgments (volume 1, § 35), clearly recognizes that this order is interlocutory. He says: “Exceptions. But owing to particular circumstances and hardships, the courts have - refused to dismiss appeals from some judgments which did not completely dispose of the cases in which they were entered. * * * To avoid the necessity of being called upon to review such judgments, the superior courts have cautioned the inferior ones, and endeavored to impress upon them the evils resulting from the practice of entering interlocutory judgments capable of being at once enforced against a party, and doing him irretrievable damage before a final judgment can be entered. * * * Probably to avoid special hardship resulting from the failure to give a right of appeal from other than a. final judgment or decree, the following haye been decided, for the purpose of an appeal, to be final judgments: * * * Fixing the amount of alimony pendente lite, and directing its immediate payment.” The yiew expressed in the last sentence is the doctrine of expediency, and while, perhaps, it may be potential before a legislative body, it should not lead courts into the realm of legislation. Many of the cases cited by counsel for petitioner arose in states haying statutes different from ours. We are of opinion that the order entered by the court below, directing the payment of alimony pendente lite, suit money, and counsel fees, was interlocutory, and not a final.judgment. Earls v. Earls, 26 Kan. 178; Cooper v. Mayhew, 40 Mich. 528; Chase v. Ingalls, 97 Mass. 524; Miller v. Miller, 75 N. C. 71; Ex parte Perkins, 18 Cal. 60. And see Thomson v. Thomson, 5 Utah, 401, 16 Pac. 400; Lapham v. Lapham, 40 Mich. 527. The petition for a writ of habeas corpus is denied, and the petitioner remanded to the custody of the United States marshal.

Mebeitt, C. J., and Bartoh, J., concur.