Vollmer v. Vollmer , 43 Idaho 395 ( 1927 )

The district court for Latah county tried the divorce case ofNorman P. Vollmer v. Esther A. Vollmer. It denied a divorce to either of the parties, but allowed the wife $5,000 attorneys' fees, court costs, $300 per month alimony, etc. Each of the parties has appealed. After notice of appeal was filed by the husband, hereinafter designated as plaintiff, the defendant wife applied in the district court for an order requiring him to pay $300 per month for the support and maintenance of herself and minor child pending the appeal; $437 to pay the expense of her appeal; and $5,000 to pay her attorneys for the preparation of her case on appeal. The court granted the application to the extent of ordering plaintiff to pay $300 for attorneys' fees, $100 for the costs and expenses of the appeal, and alimony of $150 per month, commencing August 15, 1926, during the pendency of the appeal. In compliance with the order, plaintiff has paid the required sum for attorneys' fees and costs and expenses but has not paid anything as alimony for the support and maintenance of defendant and her child. The decree and order are in full force and effect, the enforcement of neither having been stayed.

Prior to the filing of the transcript on appeal, defendant filed what she termed an "original application made in this court for suit money and alimony pending appeal." The statute (C. S. 4642, 4653) vests in the district court original jurisdiction to require the husband, during the pendency of an appeal from a judgment in a divorce action, to pay the wife, as alimony, moneys necessary to enable her to support herself and her children and to prosecute or defend the appeal. (Roby v.Roby, 9 Idaho 371, 3 Ann. Cas. 50, 74 P. 957.) An order requiring such payment is appealable. (Roby v. Roby, supra;Enders v. Enders, 34 Idaho 381, 201 P. 714, 18 A.L.R. 1492.) The supreme court has original jurisdiction to require the payment of alimony only when necessary or proper to the complete exercise of its appellate jurisdiction. (Const., art. 5, sec. 9; Roby v. Roby, supra; Callahan v. Dunn, 30 Idaho 225,164 P. 357; Enders v. Enders, supra; Hay v. Hay, 40 Idaho 624,235 P. 902.) While, therefore, the district court may require the husband, during the pendency of an appeal, to pay the wife, as alimony, the money necessary to enable her to support herself and her children and prosecute or defend the appeal, this court may only require such payment when necessary or proper to the complete exercise of its appellate jurisdiction. To secure the exercise of the original jurisdiction of this court to require such payment it must be made to appear that an appeal has been taken to this court and that there is, therefore, occasion for the exercise of its appellate jurisdiction; and one seeking such an order by this court is also required to show, not so much that the payment of the moneys sought is necessary for the support of the wife and children, but rather that it is necessary and proper to the complete exercise of its appellate jurisdiction.

That this application was made prior to the time the record reached this court, under the authority of Roby v. Roby, is alone probably sufficient to justify the denial of the application. It is not necessary, however, to rest the decision solely on this ground. Defendant's attorneys have accepted payment from plaintiff, in pursuance of the order of the district court, of $350 attorneys' fees and $100 to pay the expense of the appeal. This insures a full presentation of defendant's case on appeal; and it does not appear that the full and complete exercise of our appellate jurisdiction, with respect to this cause, depends on or would be, in the remotest degree, affected by granting this application.

The application is denied.

Taylor and T. Bailey Lee, JJ., concur.

(March 1, 1927.)