Opinion
No. 28529.
May 19, 1953.
APPEAL FROM THE CAPE GIRARDEAU COURT OF COMMON PLEAS, CAPE GIRARDEAU COUNTY, J. HENRY CARUTHERS, J.
R. P. Smith, Cape Girardeau, for appellant.
J. Grant Frye, Cape Girardeau, for respondent.
This is an appeal from an order allowing a $50 attorney's fee on a motion for temporary allowances.
J. P. Dees filed a divorce suit against his wife Florina. Defendant filed an answer admitting certain allegations, denying others, and setting up the defense of recrimination. She filed no cross bill or counterclaim praying for affirmative relief. Thereafter she filed no motion for temporary allowances. Later the court, on motion of plaintiff, dismissed the cause without prejudice. After the cause was dismissed the court, over plaintiff's objection, conducted a hearing on the motion for temporary allowances. The court sustained the motion and awarded defendant an attorney's fee in the sum of $50. Following the overruling of his motion for a new trial plaintiff duly appealed to this court from the order of the trial court sustaining the motion for temporary allowances.
The order must be affirmed under the controlling ruling in Waters v. Waters, 49 Mo. 385. In that case, pending a proceeding for divorce brought by the husband, the defendant applied for an allowance for counsel fees for her defense. Before the application was heard the plaintiff dismissed his petition. Notwithstanding the dismissal the court proceeded to hear and decide the application for attorney's fees and made an allowance in the sum of $40. On appeal it was held that the dismissal of the suit by the plaintiff while the application for allowance was pending did not defeat the wife's claim. The judgment was affirmed. The court said, 49 Mo. loc.cit. 389:
"I cannot imagine that he could defeat the application in this way, although the fact that the prosecution was to end should affect the amount to be allowed. If the friends of the wife gave her such credit as to enable her to properly appear to the suit, trusting to her ability to obtain an allowance to reimburse them after she had appeared and applied for the proper sum, the application is not only made pending the suit, but it would be a fraud upon her rights to permit the husband to defeat it by then dismissing the proceeding."
While cases such as Woodward v. Woodward, 84 Mo.App. 328, indicate that under such circumstances it is necessary for the court to set aside the order of dismissal and reinstate the suit in order for the court to have jurisdiction to make an allowance of alimony, we have heretofore, in Adams v. Adams, 49 Mo.App. 592, held that under such circumstances the trial court has jurisdiction to make the order even after the case has been dismissed. See 49 Mo.App. loc.cit. 598:
"* * * where the husband is the plaintiff, he cannot defeat the right of the wife to such alimony by dismissing his suit, * * * (then after quoting from Waters v. Waters, supra, the court proceeded): We apprehend that the principle of that case governs the case before us, so far as the jurisdiction to make the order is concerned. * * * ([49 Mo.App.] loc.cit. 599): We, therefore, hold that the court had the power, on the day following the decree, to make the award."
It is the recommendation of the Commissioner that the order of the Cape Girardeau Court of Common Pleas be affirmed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The order of the Cape Girardeau Court of Common Pleas is, accordingly, affirmed.
BENNICK, P. J., ANDERSON, J., and DEW, Special Judge, concur.