Brown v. Brown

• Decision Date: 12 July 1920
• Docket Number: 21298
• Court: Mississippi Supreme Court
• Parties: BROWN v. BROWN

85 So. 180

123 Miss. 125

BROWN v. BROWN

No. 21298

Supreme Court of Mississippi

July 12, 1920

March 1920

DIVORCE. Supreme court may allow allimony pendente lite on appeal

The supreme court has power to grant alimony pendente lite and attorney's fee on appeal to the wife in a suit for divorce and alimony, notwithstanding the appeal was granted by the lower court with supersedeas.

HON. E N. THOMAS, Chancellor.

APPEAL from the chancery court of Warren county, HON. E. N. THOMAS Chancellor.

Suit by Mrs. Evie May Brown against Charles H. Brown for divorce and for custody of the child. Decree for complainant awarding alimony and attorney's fees, and defendant was granted an appeal with supersedeas, and appellee moved for alimony pendente lite and for attorney's fees in the supreme court. Motion granted.

Anderson Voller & Kelly, for motion.

All the law and justice and reason are in favor of this attorney's fees for and pending the litigation of the case demand that she now be paid temporary alimony and in the supreme court. This is exactly what was decided by the New Jersey court in the case of Disborough v Disborough, 28 A. 3. This New Jersey court is a strong one, and one to which all the courts of the Union go for safe and sane authority on all questions passed on by it.

It will be noticed also in that New Jersey court that the wife was denied her divorce in the lower court, and had to appeal to the appellant court, but she did what she had a right to do--asked for attorney's fees, temporary alimony and the payment of all expenses necessary to perfect and carry the appeal through. The court decided that she was entitled to these things, the temporary alimony beginning at the time that notice of appeal was given. Counsel say we are asking for alimony from September, 1919, or from the date of the decree. If they will look carefully at our brief they will see that we are asking for alimony only from the time that the supersedeas attached, which was November 19, 1919.

We submit, if the court please, that we are clearly within our rights in making the demand that we do. If there was no necessity on the part of appellee for this temporary alimony and attorney's fees we certainly would not be asking for it, because we freely admit that we would not be entitled to it.

Henry & Canizaro, against motion.

The case of Hall v. Hall, 77 Miss. is not in point in this case, either on the question of additional attorney's fee or on question of alimony pending this appeal, for the reason that the appeal in that case was taken from the decision of the court below on an interlocutory decree allowing Mrs. Hall temporary alimony and attorney's fee. It does not appear from the record that Mr. Hall, the appellant, had any property or that Mrs. Hall was given a lien on the property of Mr. Hall, nor does it appear what bond, if any, with supersedeas (was required in that case; in other words there appears a necessity for the allowance in order that the wife might be properly represented, which is not the case here. The case of Franklin v. Franklin, 109 Miss. 163, is not an authority for the appellee.

The two cases above quoted simply establish the jurisdiction of the appellate court in the exercise of its discretion to make allowance according to the necessities of the wife that she may be properly represented in the appellate court, a proposition which we concede as applying to those cases. The case at the bar in our opinion presents a different question.

In the case of Porter v. Porter, 41 Miss. 118, it is said that the allowance would be made if it was necessary to enable the wife to prosecute her suit and in determining what was a proper allowance, the court must be informed of the condition and circumstances of the parties and the pecuniary ability of the husband, then the court said: "Such allowance to the extent of the actual wants of the wife until her suit can be investigated and determined is almost a matter of course." The same view is held by this court in the case of Parker v. Parker, 71 Miss. 167. The court said though CAMPBELL, Chief Justice: "We find no fault with the allowance by the court for the maintenance of the wife, but it seems to us that the allowance for counsel fees (one hundred and fifty dollars) is exorbitant . . . The allowance for means of defense should be limited by the necessity of the case and the reasonable cost of conducting the case of the wife."

Aside from the request in the petition and motion of appellee for additional attorney fee, appellee in her motion and petition asks for "support money or temporary alimony while the case is pending in" this court, from the time the supersedeas of the decree of the lower "court took effect."

The allowance is made by the court, first, in case of necessity upon the part of the wife, and second, the allowance will never be made for past expenses. (19 C. J. 228-229) 6. Discretion of Court. The allowance of suit "money and counsel fees to a wife, and the amount thereof, as in the case of an allowance of temporary alimony, is largely within the discretion of the trial court, to be exercised in view of the conditions and circumstances of the case; and it will not be disturbed on appeal unless this discretion has been abused. Since, however, the object of the allowance is to enable the wife to prosecute or defend the suit, the general rule is that an allowance will not be made to pay expenses which have already been incurred." California: Newlands v. Los Angeles, County super. Ct., 191 Cal. 741, 154 P. 829; Idaho: Donaldson v. Donaldson, 31 Ida. 180, 180 P. 94; Illinois: Peo v. Mehan, 198 Ill. A. 300; Lynch v. Lynch, 99 Ill. A. 454; Montana: Bordeaux v. Bordeaux, 29 Mont. 478, 75 P. 359; New York: Beadleston v. Beadleston, 103 N.Y. 402, 8 N.E. 735; Cipro v. Cipro, 161 N.Y.S. 408.

Page 230. "On final hearing while some courts allow counsel fees to a wife on her obtaining a decree of divorce, or for separate support, the allowance is refused under statutes which only authorize such allowances to enable the wife to carry on or defend the action, and which are construed not to apply to allowances for expenses which have been already incurred, unless the payment of past expenses is necessary to enable the wife further to prosecute or defend the action."

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