Collins v. Collins

• Decision Date: 19 September 1961
• Docket Number: No. 17836,17836
• Parties: Marilyn P. COLLINS, Respondent, v. Charles A. COLLINS et al., Defendants, of whom Charles A. Collins is Appellant. Marilyn P. COLLINS, Respondent, v. Charles A. COLLINS, Robert Perry Collins, a Minor Under the Age of Fourteen Years and D. Reece Williams and J. Laurence McNeill, as Trustees for Charles A. Collins, of whom D. Reece Williams and J. Laurence McNeill, as Trustees, are Appellants.
• Court: South Carolina Supreme Court

Page 1

122 S.E.2d 1

239 S.C. 170

Marilyn P. COLLINS, Respondent, v. Charles A. COLLINS et al., Defendants, of whom Charles A.

Collins is Appellant.

Marilyn P. COLLINS, Respondent, v. Charles A. COLLINS, Robert Perry Collins, a Minor Under the

Age of Fourteen Years and D. Reece Williams and J. Laurence

McNeill, as Trustees for Charles A. Collins, of whom D.

Reece Williams and J. Laurence McNeill, as Trustees, are Appellants.

No. 17836.

Supreme Court of South Carolina.

Sept. 19, 1961.

McEachin, Townsend & Zeigler, Florence, Robinson, McFadden & Moore, Columbia, for appellant Charles A. Collins.

Wyche, Burgess & Wyche, Geenville, for appellant trustees.

Murchison, West & Marshall, Camden, for respondent.

LEGGE, Justice.

In this action, commenced in February, 1960, against her husband, for divorce, support for herself and their minor child, and custody of that child, the plaintiff joined as defendants the two trustees under an alleged living trust agreement that had been executed in 1942 by the father of the defendant husband for the benefit of said defendant. The case, once before us on a question of venue, 237 S.C. 230, 116 S.E.2d 839, now comes on two separate appeals from a circuit decree dated February 2, 1961, which: (1) adjudicated on its merits the controversy between the plaintiff wife and the defendant husband; and (2) ordered that in the event of his default in any payment directed by the decree to be made to or for the benefit of the plaintiff and said child, or to her attorneys as their fee, such payment be made by the trustees from the trust assets.

The husband's appeal charges that the decree is erroneous because:

1. The evidence was insufficient to support the holding of physical cruelty and constructive desertion;

2. The amounts awarded for support of wife and child, and for attorneys' fee, respectively, are excessive; and

3. It required the husband to pay all medical and hospital bills incident to the birth and care of the child, and in that connection to reimburse the plaintiff's mother for expenditures made by her for such purposes.

Plaintiff and the defendant husband were married on September 1, 1957. Each was then eighteen years of age. The chronology of their brief married life need not be set forth here; it is to be found in State v. Collins, 235 S.C. 65, 110 S.E.2d 270. Nor need we discuss in detail the numerous acts of physical violence committed by him against the plaintiff, commencing shortly after their marriage and continuing into the eighth month of her pregnancy, when in fear for her safety and that of her expected child she left him and went to her mother's home. The evidence in the case at bar fully warranted the trial judge's conclusion that they constituted such physical cruelty as to endanger her health, and afforded sufficient ground for divorce a vinculo matrimonii.

The appellant husband is a senior at the University of Georgia and expects to graduate with a degree in business administration in December, 1961. The evidence shows that he owns no property; that from time to time when not attending college he has earned various sums ranging from twenty to fifty dollars a week by selling books and working in department stores, including one of several in which his family has an interest; and that he is the beneficiary of an inter vivos trust established by his father about the year 1942, but has at present no control over the distribution of its income or corpus (presently appraised at about $75,000), the trustees having the right in their sole discretion to control such distribution until he reaches the age of twenty-eight years.

The decree under appeal ordered the appellant to pay to his wife on February 15, 1961, and monthly thereafter through December, 1961, $200 of which $100 was for alimony and $100 was for the support and maintenance (exclusive of medical and hospital care) of the child. It further ordered that commencing January 1, 1962, these monthly payments be increased to $300, of which $150 should be for alimony and $150 should be for the support and maintenance (exclusive of medical and hospital care) of the child. Since February 15, 1961, the payments of $200 monthly provided for in Judge Grimball's order have been made. To assume that the appellant will be able immediately after his graduation to pay or procure payment of a larger amount each month would be to indulge in speculation. If later his financial situation shall justify larger payments they may be ordered, upon proper showing. In the meantime the payments of $200 monthly, ordered to be made through December, 1961, shall continue to be made thereafter; and the decree is modified accordingly.

The trial judge, having taken into consideration respondent's financial inability to pay her attorney for his services, fixed his fee at $3,000, and ordered it paid by the appellant husband. By the terms of the decree, the fee so ordered to be paid was to be 'in payment of all past legal services', but was not to include compensation 'for any future services that the plaintiff or her son may require as a result of this litigation.' Appellant contends that the fee so allowed is excessive, and that the evidence shows that it is beyond his ability to pay.

The record here reveals that over an extended period of time prior to the commencement of this action respondent's counsel rendered services to her in other litigation arising out of her marital trouble, to wit: (1) an action for divorce in the Juvenile, Domestic Relations and Special Court of Kershaw County, dismissed for lack of jurisdiction; (2) another action in that court, in which the defendant unsuccessfully attacked the jurisdiction and thereupon served notice of intention to appeal; (3) criminal prosecution of the defendant for non-support, State v. Collins, supra, in which respondent's counsel collaborated with the solicitor both in the trial and in the appeal; and (4) action for divorce in the Court of Common Pleas for Horry County, terminated by consent order setting aside the attempted service of the summons and complaint.

That the trial judge in fixing the fee took into consideration counsel's services in those matters is suggested by his having admitted, over objection, evidence of them 'as part of the past history of the proceeding', and by the statement in the decree under appeal that the fee allowed 'is in payment of all past legal services.'

The successful litigant had no right at common law to recover attorney's fees from his opponent. When allowed, such fees are in the nature of costs, and the right to recover them is statutory. 14 Am.Jur., Costs, Section 63, p. 38.

Section 20-112 of the 1952 Code, which is the statutory authority for respondent's claim, provides that in every action for absolute divorce the wife, whether plaintiff or defendant, may apply for allowance of a fee for her attorney, and that if such claim appear well founded the court shall allow a reasonable sum therefor. The statute does not suggest that the fee be in anywise referable to services in other litigation, and we construe it as authorizing its allowance for services in the particular action only.

Whether or not in a divorce proceeding the husband's financial status is a factor to be considered by the court in its assessment of the fee of the wife's counsel is a question that has been variously discussed in other jurisdictions, Anno. 56 A.L.R.2d 41, 115, and to which we shall not attempt a categorical answer, though it would seem to us that the husband's wealth or poverty is a matter bearing not so much upon the value of such services as upon the collectibility of the award therefor. For where the wife has demonstrated to the court, as she has here, that her claim for attorney's fee is well founded, she is entitled to a reasonable allowance therefor, taking into consideration the nature, extent and difficulty of the services rendered, the time necessarily devoted to the matter, the professional standing of her counsel, cf. Duncan v. Breithaupt, 1 McCord's Law 149, 12 S.C.L. 149, the contingency of compensation, and the beneficial result accomplished (the last involving of necessity the financial status of both parties as bearing upon the amount of alimony); and to judgment accordingly. That the husband may be unable to pay it affords no basis for denial of such a judgment. Cf. Messervy v. Messervy, 85 S.C. 189, 67 S.E. 130, 30 L.R.A.,N.S., 1001, 137 Am.St.Rep. 873.

Counsel for all parties in the case at bar are well known to this court as gentlemen of the highest professional standing; and the case has been ably handled on both sides. We have carefully considered the voluminous record and are of opinion that $1,500 is a fair and reasonable sum to be allowed as compensation for respondent's counsel for services in this case from its commencement through the present appeal; and judgment against the appellant husband therefor is ordered accordingly.

Robert Perry Collins, the child of the respondent and her husband, appellant herein, was two years old at the time of the last hearing before Judge Grimball. It appears that he is not a strong, healthy child; that he has had several illnesses; and that at the time of said hearing he was under medical observation to determine whether or not his hearing was defective. The appellant husband has paid none of the hospital or medical bills incident to the child's birth, nor has he paid anything for its subsequent medical treatment or hospitalization. Respondent being without funds, her mother has paid some of these expenses and the evidence indicates that she has assumed responsibility for payment of others. Respondent's mother testified that she had paid more than four hundred dollars for the child's medical and hospital expenses, and that she had also paid approximately two hundred fifty dollars for the expenses of a trip (on which she had accompanied respondent and the child) to Johns Hopkins...