Opinion
No. 28695.
September 15, 1953.
APPEAL FROM THE CIRCUIT COURT, LINCOLN COUNTY, B. RICHARDS CREECH, J.
Not to be reported in State Reports.
F. D. Wilkins, Louisiana, Gaylord Wilkins, Jefferson City, of counsel, for appellant.
John P. Sullivan, St. Louis, Omer H. Avery, Troy, for respondent.
This is an appeal from the judgment of the Circuit Court of Lincoln County sustaining in part a motion for alimony pendente lite, suit money and attorney's fees. Nellie Hopkins filed a divorce suit on January 14, 1952. On May 8 of that year she filed a motion alleging that she was without the necessary means of livelihood to support and maintain herself and to defray expenses in connection with the prosecution of the suit, while defendant was possessed of property and earned a livelihood, and prayed for an allowance for alimony pendente lite, suit money and attorney's fees. After a hearing the trial court found that Nellie Hopkins was able to pay her attorney's fees and prosecute her suit, but awarded her $80 per month as alimony pendente lite. The husband, Grover Hopkins, has appealed to this court from that judgment.
Nellie Hopkins separated from her husband on January 1, 1952. Since that time she has had no income from him or from other sources, and has been living with her children. Defendant operates a farm on which there is livestock owned jointly by plaintiff and defendant worth approximately $2,915. Appellant has sole possession of the livestock. The farm has a house and barns on it, consists of 159 acres, and is owned by the parties by the entirety but appellant has sole possession of the farm. While plaintiff and appellant lived together the farm produced an income and they lived off the profits. Appellant refused to allow plaintiff to take away from the farm any fruit and foodstuffs from the cellar and refused to unlock the cellar and let her see the fruit and foodstuffs therein. At the time she left her husband (January 1) plaintiff had approximately $1,060.50 but between January 1 and the time of the hearing on the motion (May 8, 1952) plaintiff reduced that sum, by expenditures or bills incurred, to approximately $700. This constitutes all of the money or property that plaintiff has except her interest in the livestock and farm. Her current living expenses amount to approximately $80 a month. At the time of the hearing she had not paid her attorney and she owed for approximately two months' grocery bills.
The sole question is whether respondent has sufficient property in her own right to conduct and defend her action and to support herself during its pendency. If so, the burden should not be imposed upon the husband, for the right to alimony pendente lite and suit money depends upon the necessities of the case. Rutledge v. Rutledge, 177 Mo.App. 469, 472, 119 S.W. 489; Summers v. Summers, Mo.App., 222 S.W.2d 514. In the determination of this question the trial court is obliged to exercise a judicial discretion. Appellate courts are loath to interfere with the discretion of the trial court in the making of temporary allowances to the wife pending a divorce action, Batteiger v. Batteiger, Mo.App., 151 S.W.2d 557, loc. cit. 559, and will not interfere unless it appears that there has been a manifest abuse of discretion. Sellers v. Sellers, Mo.App., 183 S.W.2d 860.
We find no abuse of discretion in the action of the trial court.
In determining the value of the property held by and available to plaintiff for the support of herself and the efficient prosecution of her action, plaintiff's interest in the farm held by the entirety cannot be counted, because, acting independently of her husband, she could not exploit that property by sale or encumbrance. Brinker v. Brinker, 360 Mo. 212, 227 S.W.2d 724, loc. cit. 727. Nor is her joint interest in the livestock to be counted against her in the calculation.
While plaintiff as the joint owner of the livestock had the legal right to partition the same, Section 528.620, RSMo 1949, V.A.M.S., or to sell her individual interest in the joint property acting independently of her husband, 48 C.J.S., Joint Tenancy, § 17, p. 937, she should not be required to do so in order to obtain money for her sustenance. A partition suit would not be practical because it would not produce the money with sufficient dispatch. Furthermore, plaintiff's individual interest in property jointly owned by hostile litigants who are warring in the courts would not find a ready market and if sold would likely result in a sacrifice price. It has been held that pending a divorce suit a wife need not sell her horses and carriages, valued at $1,300, Robertson v. Robertson, 137 Mo.App. 93, 119 S.W. 533, or sell or pawn her diamond rings or piano, Davis v. Davis, 174 Mo.App. 538, 160 S.W. 829, to obtain money on which to live and pay the cost of maintaining a divorce action, and we hold that plaintiff in the instant case was not obliged to sell her interest in the livestock in order to sustain herself pendente lite, where, as appears here, the husband is able to provide for her.
The Commissioner therefore recommends that the judgment of the circuit court be affirmed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the circuit court is, accordingly, affirmed.
BENNICK, P. J., ANDERSON, J., and HOLMAN, Special Judge, concur.