Moore v. Moore, No. 13706 (Supreme Court of Oklahoma, Opinion Filed November 21, 1922)

Factual and Procedural Background

Sampson Moore (plaintiff) commenced a divorce action against Lizzie Moore (defendant) in the district court of Pittsburg County on May 27, 1922. On August 8, 1922, the plaintiff presented an application for allowance of attorneys' fees, suit money, and support pendente lite. The trial court ordered the defendant to pay the plaintiff attorneys' fees of $250, suit money of $100, and $50 per month during the pendency of the action, and decreed a lien upon certain personal property of the defendant. Lizzie Moore prosecuted an appeal seeking to reverse that order. The defendant in error (Sampson Moore) filed a motion to dismiss the appeal on the ground that the order was not appealable.

Legal Issues Presented

1. Whether an order allowing alimony and attorneys' fees pendente lite is an appealable order.
2. Whether the order is void because it purported to decree a lien upon property of the plaintiff in error, who was alleged to be a restricted Indian under guardianship due to incompetency.

Arguments of the Parties

Plaintiff in Error (Appellant) — Lizzie Moore

• Argued that the trial court's order is void because it attempts to decree a lien upon property of the plaintiff in error, who is a restricted Indian and under guardianship by reason of incompetency.

Defendant in Error (Respondent) — Sampson Moore

• Moved to dismiss the appeal on the ground that the order allowing alimony and attorneys' fees pendente lite is not an appealable order.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded from a controlling precedent. It cited State ex rel. Blackaby v. Cullison, Judge, 31 Okla. 187, 120 P. 660, which established that an order allowing alimony and attorneys' fees pendente lite is not an appealable order. Applying that rule, the court concluded the present order (which granted attorneys' fees, suit money, monthly support pendente lite, and a lien on certain personal property) was not reviewable by this court in a proceeding in error. Because the appeal was not from an appealable order, the court sustained the motion to dismiss.

The court noted the appellant's contention that the order was void insofar as it attempted to create a lien on property of a restricted Indian under guardianship, but it declined to address that contention on this appeal. The court explained that the question of enforcement and objections to enforcement could be presented to the trial court if any effort were made to enforce the order.

Holding and Implications

Holding: The court sustained the motion to dismiss and the appeal is DISMISSED.

Implications: - The direct effect is that the order of the trial court allowing alimony and attorneys' fees pendente lite was not reviewed on appeal; the appeal has been dismissed. - The court did not decide the separate contention that the decree of a lien was void as applied to a restricted Indian under guardianship; that issue may be raised in the trial court if enforcement is attempted. - The opinion follows established precedent and does not announce a new rule of law beyond applying State ex rel. Blackaby v. Cullison.

Judges KANE, JOHNSON, McNEILL, MILLER, and NICHOLSON concurred.