Stibbs v. Stibbs

231 P.2d 310, 38 Wash. 2d 565, 1951 Wash. LEXIS 463

• Court: Washington Supreme Court
• Decided: May 3, 1951
• Docket: 31714
• Status: Published

Opinions

Mallery, J.

The respondent brought an action against the relator for separate maintenance. Our opinion, granting respondent a new trial, may be found in Stibbs v. Stibbs, 37 Wn. (2d) 377, 223 P. (2d) 841. Thereafter, and before the new trial, respondent moved the trial court, under Rem. Supp. 1949, § 997-9, for attorneys’ fees and suit money in the amount of two thousand dollars. The court made an award of twelve hundred and fifty dollars. The relator asks us to set the order aside.

The statute specifically provides for suit money pendente lite in actions for divorce and annulment without mention of the action for separate maintenance. Rem. Supp. 1949, § 997-9, provides, among other things:

“Pending an action . . . the Court may make . . . such orders relative to the expenses of such actions, including attorneys’ fees, as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. . . . ” (Italics ours.)

The right to suit money pending an action for separate maintenance is independent of statute, as is the action itself. State ex rel. Young v. Superior Court, 85 Wash. 72, 147 Pac. 436. We now hold that the rights are so analogous, even though based upon different sources, that the right to suit money in an action for separate maintenance is governed by the provisions of Rem. Supp. 1949, § 997-9, and the decisions interpreting it.

In April, 1948, the parties sold their home and divided the money equally, except for the real-estate commission which relator paid. This amounted to six thousand dollars cash for the respondent. This amount was being reduced gradually by living expenses up to the time in September, 1950, when respondent took a position as school teacher at an annual salary of two thousand dollars. Of the original six thousand dollars there now remains something in excess of twenty-five hundred dollars. Respondent has not shown that she cannot live on her salary. The relator does not contend that he is unable to pay the award pendente lite.

Until we find that there should be an award, we are obviously not concerned with its amount and need not discuss citations and the contentions on that question.

All expenses reasonably incurred or necessary to be incurred during the pendency of the action, except those of appeal, may be provided for by the superior court. State ex rel. Turner v. Paul, 182 Wash. 261, 46 P. (2d) 1060. The action is “pending” until its final disposition. 31 Words and Phrases (Perm, ed.) 643; Nelson v. Nelson, 7 Cal. (2d) 449, 60 P. (2d) 982; see Crooks v. Rust, 125 Wash. 563, 216 Pac. 869.

It has been held that a wife need not pauperize herself by selling her assets to make the cash outlay necessary for the litigation. Dietrich v. Dietrich, 209 S. W. (2d) 540; Heck v. Heck, 63 Cal. App. (2d) 470, 147 P. (2d) 110. The wife is not put to the election of spending her money for living expenses or the preparation of her case, Armstrong v. Armstrong, 185 S. C. 518, 194 S. E. 640; Dietrich v. Dietrich, supra, but she is not entitled to such an award when she has ample funds for both. In the instant case, she is not called on to sell the roof over her head to get cash. She already has it in an amount in excess of her own estimate of need for both purposes.

Such an award is in no sense a temporary adjustment of property rights. Its sole purpose is to effectively afford the wife her day in court. While the court must be concerned with the probable cost of the litigation in making the award, it should not permit speculation as to the merits of the action to affect it. Such a consideration must abide the final judgment in which it can be provided for. Rem. Supp. 1949, § 997-9.

The purpose of the statute is not to excuse the wife from spending her own money, but to provide for the efficient presentation of her case when she is unable to do so from her own resources without hardship.

The respondent has not made a showing that entitles her to an award of suit money pendente lite.

The order is reversed.

Robinson, Hill, Donworth, and Finley, JJ., concur.