This is an appeal from an interlocutory order for support of appellee pending final determination of a divorce action wherein the appellee is the plaintiff and the appellant is the defendant.
After hearing on appellee's verified application for allowance and attorney fees the trial court made and entered an order for allowance which was modified on motion of the appellant. The order of the court as modified, omitting formal parts, reads as follows:
"Hearing on petition for interlocutory order concluded. Temporary custody of the children continued in plaintiff until further order. Defendant *Page 262 and cross-complainant is permitted to visit and to have children at all reasonable times.
"Defendant and cross-complainant is ordered to pay to the county clerk for the support of his two children and for the upkeep of the home in which they are now living with their mother, — a tenant by the entireties, — the sum of ninety dollars ($90.00) a week.
"Defendant is ordered to pay to plaintiff's attorneys partial fee of $1500.00 within thirty days or before trial.
"No order is made at this time for back support or medical and hospital bills which have accrued in the past."
It is from this order that this appeal was taken. By proper assignment of error appellant calls in question whether or not this order is sustained by sufficient evidence and whether it is contrary to law.
The undisputed evidence discloses that the appellee is the owner of 675 shares of preferred stock of an Indianapolis radio station corporation which stock has a value of $67,500; that appellee also owns 6,750 shares of the common stock of said corporation which has a value of $300,000; that appellee also owns 1,600 shares of the common stock of another corporation on which appellee received dividends in 1948 in the sum of $3,220. The evidence also discloses that appellee thinks that dividends were paid in 1949 on this last mentioned stock but does not know the amount as she has made no inquiry. The evidence further discloses that this last mentioned stock has a substantial value; that appellee also owns a Mercury convertible automobile, and has the sum of approximately $100 in cash. The evidence further discloses that from these various properties during the year 1949 appellee had an income of $6,230.85 as a minimum. The only indebtedness of appellee disclosed by the evidence is that *Page 263 except for current grocery and food bills she owes her father not to exceed $8,000. There is no evidence that the appellee has not credit sufficient for the purpose of her defense and her present support.
The evidence further discloses that appellant had a total income of $26,562.50 in the year 1949 which consisted of compensation for services and dividends from stocks; that his property consists of the same amount of stock in the said radio corporation as is owned by the appellee. It also appears from the evidence that appellant owes approximately the sum of $17,200.
By § 3-1216, Burns' 1946 Replacement, provision is made that "Pending a petition for divorce, the court, or the judge thereof in vacation, may make, . . . such orders for the 1, 2. disposition of the persons, property and children of the parties as may be deemed right and proper and such orders relative to the expenses of such suit and attorney fees as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof." Independently of this statute it has been held that the trial court in divorce proceedings has the inherent power to make orders for attorney fees and support of the wife pending the action. Crowell v.Crowell (1942), 219 Ind. 472, 39 N.E.2d 602. It is also the law that in a divorce proceeding if the wife has either funds or credit sufficient for the purposes of her defense and her present support it is improper for the court to require the husband to furnish money for such purposes pending the litigation. Kenemer v. Kenemer (1866), 26 Ind. 330. See also Snider v. Snider (1913), 179 Ind. 583, 102 N.E. 32; Crowell v. Crowell, supra.
Although no objection is made as to the form of this order as to attorney fees we note that the same provides *Page 264 that these fees are to be paid to plaintiff's attorneys. 3-5. Such an order is not proper. See State ex rel. McNabb v. Allen Superior Court No. 2 (1947), 225 Ind. 402,75 N.E.2d 788. Waiving this defect we conclude that under the evidence in this case there was no basis for the order made as to attorney fees. While it is true that the rule is that this court will not disturb the order of the trial court unless it clearly appears there has been an abuse of discretion in making the same, yet the facts here fail to show that the appellee is without present ample means with which to carry on this litigation. In taking the relative financial standing of the parties into consideration we can see no just and fair basis for the order made as to attorney fees.
We construe that part of the complaint of order which has to do with the payment of $90 per week for support as a provision for the support of the minor children whose temporary custody 6, 7. had been awarded to the appellee. We have been unable to find any decision in our court which determines whether or not in an action for divorce a wife who has adequate means for the support of herself and children is entitled to an allowance from her husband for the support of her minor children pendentelite where she has the custody of them. From an examination of the law we find this question has been decided differently in different jurisdictions. See 17 Am. Jur., Divorce and Separation, § 546, p. 439. From the reading of said § 3-1216, Burns' 1946 Replacement, which empowers the trial court to make disposition of the children of the parties pendente lite it would seem to us the trial court was empowered to make this order as to the support of the children. It is also our opinion that there was ample evidence to support this portion of the order. *Page 265
For the reasons heretofore given, that portion of the order which provides for the payment of attorney fees is hereby reversed and the trial court is ordered to vacate the same. The other portions of the said order are hereby approved.
Gilkison, J., dissents as to the reversal and vacation of that portion of the order allowing attorney fees, and concurs as to the approval of the balance of the order.
Emmert and Young, J.J., not participating.