The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-10-01

Chief Justice Merritt yesterday morn
ing rendered his decision in the mat
ter Of the plaintiffs motion for tenn
porary alimony pending the hearing of
the case, in the divorce suit of Sadies
III. Kelsey against Lewis 2. Kelsey.
His honor ordered that the defendant
pay within twenty days SO expense
money. 5000 attorney fees, and that on
October ! and on the first Of each
succeeding month he pay $40 temporary
aMmony, and that within ten days he
pay TIE further sum of $40 as alimony
for the month OF September.
Colonel Ellis, the defendants coun-
sci, moved that an appeal to the ter
rftorial supreme court be granted, and
that bond on appeal be fixed. The
motion was argued and taken under
advisement.
The full text Of the opinion handed
down by Judge Merritt is as follows,
and as will be seen it is very favorable
to the plaintiff:
Plaintiff brings her action for di-
Vorce. alleging a marriage between the
parties at Salt Lake City on or about
October 16, 1888: the birth of a son,
Lewis Marmadulle Kelsey, now six
years of age; desertion and failure to
provide on the part of the defendant
A detailed statement of property
claimed to belong to defendant is given
In the complaint, coupled with the al
legation of an earning capacity Of
$4,000 per annum. The answer denies
the marriage and desertion and all re-
sponsibility to provide for plaintiff or
child; that the child is the issue of any
legal marriage; that the property men,
toned in the complaint is wholly owned
by defendant, and specifically details
his ownership in whole or in part, with
explanatory statements of incum-
brances and outstanding debts. 1t ad-
mfts an earning capacity of $1,000 per
annum; that plaintiff requires s25
monthly for support of self and child,
as before stated: denies any liability of
defendant to pay the same.
Plaintiff alleges in her complaint.
that pending this suit, she needs S75
per month as alimony pendente lite,
$3.50 temporary suit money, and $500
as counsel fees.
The hearing is had upon plaintiffs
motion for temporary alimony, suit
money and counsel fees, alleged to be
necessary to enable plaintiff to pre-
pare for trial
The only question as to which there
was any controversy between the par
ties was that relating to the fact of
marriage, alleged and denied under
oath in the pleadings. and contested
in the evidence and argument. Neces-
sarily involved in the decision of this
question. is the construction of our
statute regulating marriage.
REASONABLY Satisfied of Good Faith.
In considering this question in the
light Of the evidence, it must be re-
memhered that the court is not now
called upon to pass finally upon the
lights of the parties. 1t is only neces-
sary that I shall be reasonably sat
isfed of the good faith of the plaintiff
in asserting and maintaining the fact
Of marriage. and that, from the evil
dence submitted there is a fair pre-
sumption of plaintiffs being able fin
ally to establish the fact I am not
prepared to admit, even. that upon
this hearing she must establish the
fact Of legal marriage by a prepon-
derance Of evidence. This is all she
will be required to do upon the final
trial and it does not seem reasonable
that the same measure of truth should
he required upon this introductory
hearing.
It is the policy of the law to aid the
wife who is a party to a suit for di-
vorce, with alimony and suit money
drawn from the faculties of the hus-
band, If the wife's necessities REQUIRE
1t. to enable her to present her side Of
the case as well and as fairly as the
husband presents his. Where the fact
Of the marriage itself is put directly in
tc-1T
woman are certainly as serious as
those expectant upon a charge Of adul- !
terry. Where in addition to the effect |
upon the status and reputation of the !
woman, of a. finding of no marriage. is !
added the consequences of llligitimacy
of child, as in this case. it seems to
me the woman should be held only in |
prima facie proof, from which a fair
and reasonable presumption that she
will eventually prevail will be deduced. |
And this is the rule, as I understand |
st. Of the decided cases. In Brinl1ly vs.. |
Brinkly $50 n. 7. 1914 ct seq Justice |
Folger says:
at may be said, too. that for the
purposes of an application for tenn |
porary alimony. there will not need |
that the fact of the marriage lie so !
conclusively established as for the pur- /
pose of permanent alimony or any
other ultimate purpose of the action |
It is for the interest OF society and in |
aid Of public policy that where the
marriage relation has been in fact as
sumed, it should not be easily and ca
priciously laid aside; and where it is !
axerred by the putative wife and de-
MED by the alleged husband, if she
make a reasonably plain case Of its ex-
istence, she should be furnished with |
means of temporary support aud of
conducting the suit until the truth or
falsehood of her alterations can be as