Bell v. Bell

• Decision Date: 25 March 1926
• Docket Number: 7 Div. 595
• Citation: 214 Ala. 573,108 So. 375
• Parties: BELL v. BELL.
• Court: Alabama Supreme Court

108 So. 375

214 Ala. 573

BELL v. BELL.

7 Div. 595

Supreme Court of Alabama

March 25, 1926

Rehearing Denied May 13, 1926

Appeal from Circuit Court, Etowah County; W.J. Martin, Judge.

Bill in equity by Mollie A. Bell against William A. Bell. From a decree allowing attorney's fee for complainant's solicitor, respondent appeals and applies for mandamus. Appeal dismissed; mandamus granted.

Inzer &amp Inzer and Dortch, Allen & Dortch, all of Gadsden, for appellant.

W.J Boykin, of Gadsden, for appellee.

BOULDIN J.

Reduced to brief and simple phrase, the question presented is: Where a wife brings suit for divorce and alimony, obtains an ex parte order of reference to ascertain a proper allowance for temporary alimony and counsel fees, and pending such order the husband and wife become reconciled and resume cohabitation, can the court proceed, at the instance of her counsel and after the filing of a request by the wife for dismissal of the suit, disclaiming any wish for such allowance, to execute the reference and grant a decree against the husband for counsel fees?

Appellee seems to place main reliance upon our statute, section 6262 of the Code of 1923, giving an attorney a lien on "suits *** for money," denying the parties the right to "satisfy said suit" until the lien is satisfied and giving the attorney power over such suit to enforce his lien.

We cannot sustain this construction of the statute. A suit for divorce deals with the marriage relation; the claim for alimony with the duty of maintenance growing out of that relation. Suit money, including expenses of obtaining counsel for the wife, is incident to the suit. Allowance of counsel fees payable by the husband is for the benefit of the wife without means of her own, putting her in like position with the husband in the conduct of the suit.

The statutory lien attaches to the subject-matter of the suit, enforceable against the recovery. In cases to which it applies, it is a change of the public policy theretofore obtaining in so far as it deprives the parties of control over lawsuits, and authorizes an intervening attorney to continue the litigation for the purpose of establishing the amount of his fee and enforcing its collection. Western Ry. Co. v. Foshee, 183 Ala. 182, 62 So. 500; Fuller v. Lovett Bleaching Co., 186 Ala. 117, 65 So. 61; Denson v. Alabama F. & I. Co., 198 Ala. 383, 73 So. 525.

It is not for us to determine the wisdom or sound policy of thus extending the attorney's lien so as to make him a party in interest in the suit itself; but we are fully convinced there was no purpose to overturn a settled public policy so long established and so favored in the law as that which looks to the conservation of family life and the restoration of relations between husband and wife unhappily broken. To continue the prosecution of a divorce suit after the parties have composed their differences, condoned marital sins, and are making a bona fide effort to end the criminations which bring so much reflection upon themselves and their children, to permit the opening up of such matters for the purpose of fixing attorneys' fees, is out of keeping with the fitness of things. If our statute applies, and fees are to be based on the responsibility, the labor, and results of the suit, there is involved at once the issue as to grounds of divorce, the condition of the husband's estate, and the extent of blame on both sides, as going to the amount of alimony.

We hold that any claim of counsel for the wife in suits for divorce and alimony, or either, to be paid by the opposite party, must rest upon general principles of equity, and not on the statute.

Dealing with the case on equitable principles, we hold that in all events such fees must be limited to services rendered in good faith before the attorney has notice of reconciliation and resumption of marital relations. Here, it is without dispute that the wife filed her suit the next day after separation, without time for reflection and for the reaction which often comes to both parties after husband and wife have lived together and reared a family. Within a week thereafter they had become reconciled and were living together. Of this her attorneys had direct notice. This, without further instruction, was notice of abandonment of the divorce suit; indeed, the abrogation of the cause of action by condonation. Without express orders to dismiss the suit, it was a withdrawal of further authority to proceed, and the subsequent taking of a decree pro confesso against the husband could only be supported by the assumption that the case was within the statute.

Coming to the main question as to when the attorney for the wife in his own right may have his fees paid by the husband, the litigation having ended by a reconciliation of the parties, we find the authorities sharply divided.

The views in favor of such allowance are well expressed in Fullhart v. Fullhart, 109 Mo.App. 705, 83 S.W. 541, as follows:

"We know of no principle of law by which a woman who has a meritorious cause of action for divorce employs an attorney to institute and prosecute such an action can, after it has been instituted and carried on for some time, deprive him of his right to compensation for the services so rendered in that action by a reconciliation with her husband followed by a resumption of cohabitation. It would seem that upon the clearest principles of common honesty as well as law that an attorney in such a predicament ought to be compensated for the services rendered and that the wife should be allowed suit money for that purpose."

We may note here that in the above case evidence had been heard on the motion before the reconciliation, and there was no actual motion of the wife to dismiss the suit until after the decree making the allowance. A like distinction is drawn in Beaulieu v. Beaulieu, 114 Minn. 511, 131 N.W. 481.

The decisions in Kentucky to similar effect are influenced by statute. Powell v. Lilly, 68 S.W. 123, 24 Ky.Law Rep. 193.

In Kiddle v. Kiddle, 90 Neb. 248, 133 N.W. 181, 36 L.R.A. (N.S.) 1001, Ann.Cas.1913A, 796, stress is laid on the fact that a motion for allowance of attorneys' fees had been made, set down for hearing, and continued to a later date at the instance of the husband, and meantime a reconciliation was effected. Criticizing the doctrine of other states, the court said:

"We think it is just as much the duty of the courts to compel honesty and fair dealing on the part of a man who has had trouble with his wife, as it is to promote a peaceful adjustment of his marital difficulties. We think the reasoning of Mr. Chief Justice Cole in Sumner v. Sumner, 54 Wis. 642 , is probably nearer the mark, viz.: 'It may be a salutary admonition to him to govern himself and regulate his conduct in future, if he is required to pay the amount adjudged by the court below.' "

The opposing doctrine is based upon several considerations. Among them is the view that the allowance is solely for the benefit of the wife, that the abandonment of the suit cuts off her right to an allowance, and the right of the attorney being derivative merely is also cut off; and, again, that the right of the wife is not absolute, but arises only upon a suit brought by her in good faith upon probably just grounds, not oppressively, and when she is without personal means to assert her rights; that a reconciliation is a prima facie admission there was no ground of divorce, that it is against public policy, after reconciliation, to enter into an inquiry as to the merits of the suit in the interest of counsel tending to reopen the breach and to air the family troubles; and, finally, that the wife has the unqualified right to dismiss her suit, after which no orders can be made.

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