Ex parte Tucker

• Citation: 48 So.2d 24,254 Ala. 222
• Decision Date: 12 October 1950
• Docket Number: 7 Div. 36
• Parties: Ex parte TUCKER.
• Court: Alabama Supreme Court

Page 24

48 So.2d 24

254 Ala. 222

Ex parte TUCKER.

7 Div. 36.

Supreme Court of Alabama.

Oct. 12, 1950.

Merrill, Merrill & Vardaman, of Anniston, for petitioner.

Knox, Dixon & Wooten, of Talladega, for respondent.

LIVINGSTON, Justice.

Jessie Tucker filed her bill of complaint in the Circuit Court, in Equity, of Talladega County, Alabama, against Robert Payne Tucker praying for a decree awarding permanent alimony without divorce. Pending a final decree the court, on complainant's motion, ordered a reference to ascertain alimony pendente lite and reasonable compensation for complainant's solicitor. The reference was held before Judge W. D. DeBardelaben, and all of the witnesses were examined orally before him, resulting in a decree denying alimony pendente lite and solicitor's fee. See, Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591.

Jessie Tucker then filed in this Court an original petition for the writ of mandamus to review the findings of the trial court and exhibited to the petition a copy of the reference proceedings. In response to a rule nisi issued out of this Court Judge DeBardelaben filed an answer. Some amendments and additional pleadings were filed in this Court, but in our opinion they will not require specific treatment.

The principal question is the propriety of the trial court's action in denying Mrs Tucker alimony pendente lite and solicitor's fees The use of the writ sought here as an emergency appeal is not denied and is fully sustained by our decisions. State ex rel. Sellers v. Locke, Judge, 208 Ala. 169, 93 So. 876; Brady v. Brady, 144 Ala. 414, 39 So. 237; Ex parte Eubank, 206 Ala. 8, 89 So. 656.

Although complainant in her original bill prays for 'permanent alimony for her support and maintenance,' it is in essence a suit for separate maintenance. As pointed out in Norrell v. Norrell, 241 Ala. 170, 1 So.2d 654, there is no jurisdiction in the court to grant 'permanent alimony' without a divorce. A court of equity has jurisdiction to make an allowance for separate maintenance without a divorce being sought or granted; but permanent alimony is inconsistent with the continued relation of the married status. See, Searcy v. Searcy, 242 Ala. 129, 5 So.2d 97. Apparently, the trial court considered it a bill for separate maintenance, and we will proceed on the same theory.

Regardless of statute or right to divorce, the court may under general equity powers decree separate maintenance upon sufficient allegation and proof, the right to separate maintenance being independent of the existence of some statutory ground for divorce, Taylor v. Taylor, 251 Ala. 374, 37 So.2d 645, and it should be first observed that in separate maintenance actions solicitor's fees are allowable within the discretion of the court as an incident to granting the wife suit money. Ex parte Taylor, 251 Ala. 387, 37 So.2d 656; Penn v. Penn. 246 Ala. 104, 19 So.2d 353; Ex parte Austin, 245 Ala. 22, 15 So.2d 710.

In the instant proceeding we are concerned only with suit money which, as we have shown, includes solicitor's fees pending the hearing of the main case for separate maintenance. In Torme v. Torme, 251 Ala. 521, 523, 38 So.2d 479, 499, it was said:

'As we have observed, the decree of March 14, 1945, making allowance to appellant for her maintenance and that of the children and her solicitor's fee in that case did not grant a divorce from bed and board or legal separation, but only made such allowance. The right to such relief is therefore not controlled by sections 36 and 37, Title 34, Code, or other statute. Ex parte Hale, 246 Ala. 40, 18 So.2d 713. The allowance for a solicitor's fee is but an integral part of the allowance for maintenance. Ex parte Austin, 245 Ala. 22, 15 So.2d 710.

'When not controlled by statute, sections 30, 36 and 37, Title 34, Code, an allowance for expenses of defending or prosecuting the suit exists in all cases in which it was allowed at common law, and as to which the statute is silent. Ex parte Smith, 34 Ala. 455. It was not a matter of absolute right in maintenance suits, even when section 7417, Code of 1923, section 30, Title 34, supra, so required in a divorce case, but rested in the sound discretion of the court, Ex parte Dunlap, 209 Ala. 453, 96 So. 441, as is so now in divorce cases by section 30, Title 34, Code.

'The theory seems to be that maintenance, of which solicitors' fees are a part, can be decreed only...