Hodson v. Hodson

• Decision Date: 06 February 1964
• Docket Number: 5 Div. 774
• Parties: Earl M. HODSON, Jr. v. Beatrice C. HODSON.
• Court: Alabama Supreme Court

Page 637

160 So.2d 637

276 Ala. 227

Earl M. HODSON, Jr. v. Beatrice C. HODSON.

5 Div. 774.

Supreme Court of Alabama.

Feb. 6, 1964.

James Noel Baker, Opelika, for appellant.

J. Sydney Cook, Jr., Auburn, and Wm. C. Irby, Opelika, for appellee.

MERRILL, Justice.

Appeal from a final decree of divorce on the ground of cruelty in favor of the wife, which awarded custody of a minor child to appellee, awarded the sum of $100 per month for support and maintenance of the child, awarded appellee a one-half interest in the real property owned by appellant as alimony in gross, and awarded an attorney's fee of $200 to appellee.

Appellant's assignments of error raise the points that the evidence did not support the charge of cruelty, that an attorney's fee could not have been awarded in the absence of any proof of a reasonable attorney's fee, and that certain statements of the trial court included in the decree should be expunged.

Appellant and appellee were married in 1939, and had four children. The three older children had either reached their majority or were married when the final separation took place in October, 1962. The parties had separated several times during their married life. In 1943, appellee had charged appellant with assault and battery and he had been fined $10.00.

Their son Jerry had married in January, 1960, and appellant had refused to see his son or daughter-in-law since the marriage.

On January 27, 1962, Jerry sent some flowers to his mother on her birthday. Appellant ordered appellee to throw the flowers out of the house and when she refused, he threw them out of the house. He picked up a picture of the son's baby, 'stomped it on the floor' and tore the picture into small pieces. Appellee and one of their married daughters tried to keep him from destroying the picture and 'he was fighting us both just like a tiger at that time and hit both of us and knocked me back across the foot of the bed.'

On October 28, 1962, the date of the final separation, appellee was standing at the kitchen sink cleaning dishes. Appellee testified that appellant 'grabbed me from the back and ordered me to get out. I said I was not getting out of the house and he said, 'I ought to kill you.' * * * That's the threat he made and he would have done so if I hadn't gotten out of that house. I believe that.'

Appellant explained this incident by saying that he lost his temper and 'I feel like I grabbed a hold of her to maybe possibly turn her around to attract her attention to pay attention to what I was trying to explain to her. But physical, physical harm I do not think so.'

Their daughter testified that she had seen her father strike her mother with his hands and that she was present during the difficulties in the kitchen on October 28, 1962.

The evidence outlined was sufficient to support the decree of the court granting the divorce on the ground of cruelty. McMahon v. McMahon, 272 Ala. 653, 133 So.2d 374; Williams v. Williams, 239 Ala. 162, 194 So. 507.

Appellant insists that the court erred in awarding $200 as attorney's fee when there was no proof that the fee was reasonable, this being in conflict with the holding in Jeter v. Jeter, 36 Ala. 391. In the Jeter case, the decree was in favor of the wife on account of her husband's adultery and the decree granted her $20,000 in gross for permanent alimony, $500 alimony pendente lite and a specific sum to each of two law firms employed by appellee to represent her, totaling $1,000 as attorneys' fees. The counsel fees were allowed without any proof of reasonableness of the amount before the register. The court, after approving all the allowances except attorneys' fees, even though there was no proof of reasonableness of any of them, apparently agreed with the following statement of Walker, C. J.:

'The allowance of a solicitor's fee stands upon a different footing. That must be restricted to the actual reasonable value of the services rendered, or to be rendered. The chancellor, therefore erred in allowing the fees of the wife's solicitors, without proof as to their proper amount, and without an inquiry through the register. The chanceller did not have before him the facts necessary to enable him to determine the amount of the fees.' (Emphasis supplied.)

We have decided that the second part of the emphasized sentence is not now the law. Prior to 1915, and in 1860, when the Jeter case was decided, equity matters were handled exclusively by chancellors, Secs. 601-615, Code 1852; and it was customary for the chancellors to refer many questions to the register for the holding of a reference. Then, as now, the register was not required to be learned in the law, and whenever the question of attorneys' fees was referred to the register, the amount of attorneys' fees necessarily had to be supported by evidence of reasonableness.

The Judicial Act of 1915 abolished the office of chancellor and conferred all the powers and authority of chancellors on circuit judges. (See § 6464, Code 1923.)

In Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591, we held that the 'court has the inherent power to hear evidence in all proceedings in the equity court. Often matters, not involving the principal equities involved, are referred to the register for a reference but this is for the convenience of the court and in order to facilitate the progress of the cause but not because the court has no right to hear the evidence.' Equity Rule 56 also confers this right on the equity court. It is obvious that the requirement in Jeter that the matter of attorneys' fees must be referred to the register for reference is no longer the law.

The Jeter case has been cited many times by this court and by courts of other states, but the requirement of proof of reasonableness of attorneys' fees has not been followed by this court and has only been adverted to in two cases in over one hundred years. The first mention was in Sweat v. Sweat, 123 Ga. 801, 21 S.E. 716, where the only contention was that counsel fees had been erroneously allowed because there was no evidence before the court of the value of counsels' services. The Supreme Court of Georgia cited cases from other jurisdictions allowing the court to determine mine a reasonable fee 'from its own experience and from the facts and circumstances of the case,' and the court mentioned that a 'different conclusion seems, however, to have been reached in Jeter v. Jeter, 36 Ala. 391(7).' The court then said:

'The judges of the superior courts of this state are experienced and able lawyers. Before coming to the bench they were for years engaged in the practice. Doubtless most, if not all, of them participated in the trial of alimony cases. It would be strange if practicing lawyers were more capable of fixing counsel fees than the judges. Besides, as shown above, it has been expressly decided that the judge is not bound by the estimate placed by attorneys upon the services of their brother attorney in the particular case. Why require such evidence, if the judge can disregard it? The Code requires that he shall examine into all the circumstances of the case. This would include the financial condition of the husband, the social position of the parties and their previous manner of living, and the needs of the wife. Evidence of these facts affords a sufficient basis for fixing an allowance for temporary alimony, which includes the expenses of litigation. We think that, under the language of the section of the Code above quoted, the judge is not bound to hear expert evidence as to counsel fees. * * * Certainly it was not an abuse of discretion to allow $75 as attorney's fees. The judge could well decide, without the aid of expert testimony, that the services of the plaintiff's attorneys were worth at least the sum which he allowed them.'

Similar expressions are found in our cases, King v. Keith, 257 Ala. 463, 60 So.2d 47, and Ingalls v. Hare, 266 Ala. 221, 96 So.2d 266, although they are not divorce cases.

The second time the requirement of proof of reasonableness of the fee is mentioned is in our case of Ex parte Taylor, 251 Ala. 387, 37 So.2d 656, where it was also argued that there was no proof of the reasonableness of the attorney's fee allowed by the court. This court held that the fee should be allowed, saying, '* * * It is enough to note that as to the pending case the trial court had before it the entire record and file of the proceedings which had there transpired to final determination on its merits and of which he took judicial notice.' Here, as in Ex parte Taylor, supra, the court making the award of alimony and attorney's fees heard the witnesses and had the entire file of proceedings before him.

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