October 10, 2012

Napier v. Napier, Laurel, 1920

Previously:


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Napier v. Napier

COURT OF APPEALS OF KENTUCKY

186 Ky. 558; 217 S.W. 683; 1920 Ky. LEXIS 60

January 20, 1920, Decided

PRIOR HISTORY:  [***1]  Motion to Grant Maintenance. 

DISPOSITION: Motion to maintenance overruled.

COUNSEL: HAZELWOOD & JOHNSON for motion.

RAWLINGS & WRIGHT against motion. 

JUDGES: CHIEF JUSTICE CARROLL. 

OPINION BY: CARROLL 

OPINION

 [*559]   [**683]  OPINION OF THE COURT BY CHIEF JUSTICE CARROLL--Overruling motion to grant maintenance.

The appellant, Martha Napier, brought her action in the Laurel circuit court seeking to recover alimony in the sum of $ 2,000.00 from her husband, the appellee, William Napier. Pending the action and before the case had been prepared for submission she was allowed by the lower court $ 75.00 maintenance. After this she made a motion for another allowance which the court refused to make, and thereafter the case coming on to be heard there was a judgment dismissing her petition and refusing alimony. From this judgment she prosecuted an appeal that is now pending in this court; and we are asked by her counsel to "make to her an allowance for her support and maintenance during the pendency of this appeal." As it does not appear that we have heretofore passed on a motion like this we thought it proper to write a brief opinion.

In Pemberton v. Pemberton, 169 Ky. 476, 184 S.W. 378, which [***2]  was a suit for divorce and alimony by Lucy Pemberton against her husband, John Pemberton, she was granted a divorce and awarded alimony in the sum of $ 5,000.00 and also awarded the sum of $ 30.00 per month as maintenance pending the disposition of the appeal, which her husband prosecuted from the judgment awarding alimony. One of the questions raised by the husband was that the lower court was without authority to award Mrs. Pemberton maintenance pending the appeal. In response to this alleged error we said, citing a number of cases in support of it, that: "Both by the Civil Code and by the statutes the circuit court is empowered to grant the wife maintenance during the pendency of an action for divorce and alimony. Civil Code, section 424, Kentucky Statutes, section 2121. An action is pending whether in the circuit court or here on appeal. We, therefore, conclude  [*560]  that the circuit court has the power to grant maintenance pending the appeal."

In that case, as will be seen, we approved the order made in the lower court awarding maintenance pending the appeal, but in the case we have the lower court refused to allow the complaining wife alimony or maintenance and so the [***3]  precise question is--should we make her an allowance for maintenance pending the disposition of her case in this court?

In section 424 Civil Code it is provided that "During the pendency of an action for divorce or alimony, the court may allow the wife maintenance, and enforce the payment thereof by orders and executions and proceedings as in case of contempt." Therefore, under this express statutory authority supplemented by the opinion in the Pemberton case the lower court might have allowed Mrs. Napier maintenance during the pendency of her action in the lower court, as well as during its pendency in this court.

In view of the action of the lower court in refusing maintenance except in the sum awarded soon after the action was instituted, and in dismissing the petition, it necessarily follows that Mrs. Napier, although she may have a meritorious case and one entitling her to alimony and maintenance, a question we do not decide as we have not examined the record, would be left without either alimony or maintenance during the pendency of the appeal in this court.

The circuit court has, as we have said, the power while the case is pending in that court to make an order allowing [***4]  the wife maintenance pending the action in the lower court as well as in this court. But the circuit court has no authority to make any order concerning alimony or maintenance after there has been a final and appealable order or judgment made in the case and the complaining party has prayed an appeal therefrom. When this has been done the circuit court is divested of jurisdiction to  [**684]  make any orders in the case or enter any judgment therein, as the case thereafter must be treated as pending in the Court of Appeals.

If, however, the circuit court for any cause should fail or refuse to make on the motion of the wife an order allowing maintenance while the case is pending in the Court of Appeals we have no doubt about the power of this court to make on the motion of the wife an order  [*561]  allowing maintenance during the pendency of the appeal in this court, if it should be made to appear to the court that such an order should be made. Ex parte Farrell, 196 Ala. 434, 1916 F. L.R.A. 1257, 71 So. 462. But whether such an order should be made would necessarily require an examination of the record and such an examination as would be given if the case was considered [***5]  for the purpose of rendering a decision of the merits. So that to save the time and labor necessary to a determination of the question whether maintenance should be awarded we have concluded that a more satisfactory practice would be for the wife to ask this court to advance her appeal in order that there might be an early decision in the case, thus disposing upon one consideration of the record the question of maintenance and the case on its merits.

Wherefore the motion to allow maintenance is overruled, but counsel for Mrs. Napier may, if they so desire, move this court to advance the case, filing with their motion a statement of the reasons why it should be advanced.

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