ON MOTION FOR ALLOWANCE OPINION Appellant has perfected her appeal from an order of the Second judicial district court denying her motion for a new trial, and has made a motion in this court for the allowance of certain sums to enable her to prosecute said appeal. The notice of motion included a statement of amounts necessary for estimated expense of three copies of transcription of oral testimony adduced and depositions admitted in evidence on the trial of the action; for fees of her counsel on appeal; for paying fees of the clerk of the supreme court and incidental costs and expenses to be incurred in connection with the taking of said appeal; and for paying $50 per week (instead of and in lieu of $32 per week under the existing order of the trial court) for the support and maintenance of defendant pending the final disposition of said cause by this court, and which payments are to be *Page 154 made weekly and to continue until terminated by law.
Upon the hearing of the motion counsel for the parties stated that all sums so claimed by appellant as necessary for the purposes mentioned had been agreed upon, except the sum of $50 per week for her support and maintenance. Consequently the controversy is limited to this item.
It appears from respondent's affidavit admitted on the hearing of the motion that the lower court decided he was entitled to a divorce; that he was worth not more than $40,000; that appellant was entitled to $20,000 as her portion of property; that the trial court withheld making a minute order granting a decree of divorce until the $20,000 was paid to the clerk of the court; that on February 25, 1924, respondent, in open court, tendered to appellant $19,712, being the sum of $20,000, less deductions therefrom at that time authorized by the orders of said court to be made, in full satisfaction of the judgment order in appellant's favor and against respondent; and that at that time and place appellant refused to accept the same. In his affidavit he avers that he is worth less than $40,000, the amount found by the court. Appellant, in her affidavit, states that respondent is worth very much in excess of $40,000, and asserts as her belief that he is worth one-half million of dollars, or more. What respondent is actually worth within these limitations has little or no bearing on the question as to what amount is necessary for her support and maintenance pending the determination of her appeal. Enough appears to show that he is able to pay the weekly amount claimed as necessary. The only question is: Is the sum of $50 per week necessary for her support and maintenance?
It appears from her affidavits that she is physically unable to earn money, and that she has no means other than such moneys as she is receiving from the respondent under the existing order of the court. That this sum is not sufficient for her support and maintenance is fairly shown from her affidavits, which are not contradicted in this respect, and under the showing made *Page 155 we think that $50 per week is a proper sum to be allowed for such purposes.
As counsel for the parties have agreed upon the sums of $360, $750, and $40, respectively, for the expense of three copies of oral testimony adduced and depositions admitted in evidence on the trial of the action, for fees of appellant's counsel on appeal, and for paying fees of the clerk of the supreme court and incidental costs and expenses to be incurred in connection with the taking of said appeal, these sums are also ordered to be paid by respondent to appellant for the purposes mentioned.
In case the judgment for a divorce is not reversed on appeal, or money judgment in her favor is not substantially modified adversely to her, the sums allowed to her for her support and maintenance should be deducted from the amount paid to her in satisfaction of said judgment.
It is so ordered.
ON MERITS August 5, 1925. 238 P. 402. *Page 156