Dyke v. Dyke

• Decision Date: 16 May 1906
• Citation: 125 Ga. 491,54 S.E. 537
• Court: Georgia Supreme Court
• Parties: VAN DYKE. v. VAN DYKE.

54 S.E. 537

125 Ga. 491

VAN DYKE.

v.VAN DYKE.

Supreme Court of Georgia.

May 16, 1906.

1. Judgment—Collateral Attack—Errors— Inclusion op Attorney's Fees.

Irrespective of the question whether, on the final trial of a libel for divorce, counsel fees may properly be included by the jury in the allowance given to the wife as permanent alimony, a decree entered upon a verdict in her favor, which embraces an award of counsel fees, is not a mere nullity, and therefore cannot, after the time for exception thereto has expired, be set aside or collaterally attacked on the ground that it was erroneous.

[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, § 948.]

2. Divorce—Attachment for Contempt.

The power to enforce a decree for permanent alimony by attachment for contempt, for failing to comply therewith, belongs inherently to a court having jurisdiction of divorce suits.

[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce, §§ 754-763.]

3. Same.

When the respondent does not seek to purge himself of contempt because of inability to comply with the terms of the decree entered against him, there is no error in making the rule absolute.

[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce, §§ 754-763.]

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

Bill by Alice M. Van Dyke against E. A. Van Dyke, for divorce. Decree for plaintiff. Rule to show cause why defendant should not pay attorney's fees. Rule made absolute, and defendant brings error. Affirmed.

Mrs. Alice M. Van Dyke filed her libel for divorce against her husband, E. A. Van Dyke. Pending the divorce suit, and after the rendition of the first verdict, she applied for temporary alimony and expenses of litigation, including counsel fees. A rule nisi issued on the application, which, with the petition for temporary alimony, was personally served on the defendant. On the same day the libel for divorce was amended by adding a prayer that defendant "be required by the judgment of said court to make and pay such provision for the support and maintenance and for the payment of her counsel fees and the expenses of this, her suit for divorce, as to the court may seem reasonable and just." This amendment was personally served on the defendant. The divorce suit came on to be tried the second time, and a verdict was rendered granting the libelant a total divorce, allowing a fixed amount for permanent alimony, and finding the sum of $150 as counsel fees. Upon this verdict a decree was entered adjudging, among other things, that libelant do recover of the defendant the sum of $150, counsel fees, "as. fixed by the jury." Upon the failure of the defendant to pay the counsel fees named in the decree, Mrs. Van Dyke, for the use of her attorneys of record, applied to the superior court for a rule calling on the defendant to show cause why he should not pay the attorney's fees fixed by the decree, or in default thereof be attached and committed as for a contempt of court. The defendant demurred to this application, on the ground that the collection of counsel fees allowed by the jury in the final verdict in the divorce decree cannot be enforced by contempt proceedings. He answered that no action had been taken by the court on the application for temporary alimony, and that this proceeding is still pending and undetermined; that the decree allowing counsel fees was only to give effect to the verdict of the jury in the divorce case, and was not an adjudication of the right of the libelant to counsel fees as an incident of temporary alimony. The demurrer was overruled, the answer was held to present no sufficient defense, and the rule was made absolute. Exception is taken to this action of the court.

W. W. Haden, for plaintiff in error.

Culberson & Johnson, for defendant in error.

EVANS, J. (after stating the facts). 1. It has been the constant practice of the courts to embrace counsel fees in the wife's allowance for temporary alimony. These fees are allowed as being necessary to furnish the wife the means with which to test the sufficiency of the grounds contained in her libel for divorce. Sprayberry v. Merk, 30 Ga. 81, 76 Am. Dec. 637. Expenses of litigation, which include counsel fees, are a part of the temporary alimony which the court may allow the wife in its order granting her temporary alimony. Civ. Code 1895, § 2457. And it is generally held that the application for the payment of the expenses and counsel fees of the wife should be made pendente lite and allowed as part of the temporary alimony. 14 Cyc. 761. In the present case, the libel for the divorce was, before final verdict,...