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Appeal Regarding Award of Alimony

When a divorce is adjudged, the courts make orders touching alimony, maintenance and custody of the children.[i] The orders touching alimony, maintenance and custody of the children are collateral and are severable from the judgment of divorce.

The court may, upon petition in proper cases, allow a spouse reasonable alimony pendente lite and reasonable counsel fees and expenses.[ii] An order relating to alimony pendente lite, counsel fees and expenses is separable from and collateral to the main cause of the divorce action.

In Beckmann v. Beckmann, 358 Mo. 1029 (Mo. 1949), the court held that a judgment for divorce is a permanent one while a judgment of alimony is never final in the sense it cannot be changed.  The court further held that a new trial is granted as to alimony alone without disturbing the judgment of divorce.  Also, an appeal from an order as to alimony does not bring up the divorce decree for review.

An order denying a motion for reduction in alimony is appealable.[iii] Also, an order changing a judgment of divorce by reducing the amount of alimony is appealable.[iv]

However, in Patron v. Patron, 40 N.Y.2d 582 (N.Y. 1976), the court held that modifications in matrimonial actions relating to allowances for alimony are not appealable.  Similarly, in Fliehr v. Fliehr, 56 N.C. App. 465 (N.C. Ct. App. 1982), the court held that orders for child support which are entered in conjunction with orders awarding alimony pendente lite are not appealable until entry of a final order on the claim for permanent alimony.

An order in an action for divorce awarding the wife alimony and suit money pendente lite to be paid by the husband, may not be taken by appeal or error to the supreme court before judgment or decree granting or denying a divorce.[v] Similarly, findings and recommendations of a referee concerning temporary alimony and support which are approved by the trial court do not constitute a final appealable order.[vi]

There is an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted.  An order is considered final and appealable if:[vii]

  • it is separable from and collateral to the main cause of action;
  • the right involved is too important to be denied review; and
  • the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

[i] Beckmann v. Beckmann, 358 Mo. 1029 (Mo. 1949)

[ii] Fried v. Fried, 509 Pa. 89 (Pa. 1985)

[iii] Botkin v. Botkin, 247 Minn. 25, 31 (Minn. 1956)

[iv] Wetmore v. Wetmore, 162 N.Y. 503, 512 (N.Y. 1900)

[v] Aspinwall v. Aspinwall, 18 Neb. 463 (Neb. 1885)

[vi] Daughtry v. Daughtry, 47 Ohio App. 2d 195 (Ohio Ct. App., Summit County 1973)

[vii] Fried v. Fried, 509 Pa. 89 (Pa. 1985)

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