Keefer v. Keefer
| Citation | 78 S.E. 462,140 Ga. 18 |
| Parties | KEEFER v. KEEFER. |
| Decision Date | 14 May 1913 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
Where a wife brought suit against her husband, alleging a permanent separation on account of misconduct on his part, and praying for permanent alimony and for an allowance as temporary alimony and counsel fees, and pending the case, but before the allowance of temporary alimony or counsel fees, the parties adjusted their differences, resumed cohabitation, and desired that the case be dismissed, it was proper to enter an order of dismissal, and to refuse to permit the attorneys for the wife to intervene and become parties to the case, or to render a judgment in that proceeding for attorney's fees.
The inclusion in the original petition of a prayer for the appointment of a receiver to hold the property of the husband within the jurisdiction, as a means of realizing on such judgment as the wife might obtain, and the appointment of a temporary receiver, did not alter the case.
(Additional Syllabus by Editorial Staff.)
In an action for separate maintenance, the allowance of temporary alimony, including attorney's fees, is within the sound discretion of the trial court, and not a matter of arbitrary right.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Evins & Spence, of Atlanta, for plaintiff in error.
Rosser & Brandon, of Atlanta, for defendant in error.
LUMPKIN J. (after stating the facts as above).
The argument in this case has taken a wide range. It has included, among other things, a discussion of the marital right of the husband as to the wife's property, under the common law, its effect in leaving her practically helpless to bring a divorce suit against her husband or defend one brought by him, unless "suit money" were allowed her, the consequent treating of her attorney's fees in such cases as in the nature of necessaries, where the attorney in good faith and on probable cause prosecuted or defended a wife's divorce suit with her husband, the recognition of that theory in this state (Sprayberry v Merk, 30 Ga. 81, 76 Am.Dec. 637, decided in 1860 distinguished from a case involving other facts in Glenn v. Hill, 50 Ga. 94, decided in 1873), the question of the effect of the adoption of the Code, which first became of force in 1863, and contained express provisions in regard to allowing temporary alimony and attorney's fees pendente lite, and of the enactment of what is commonly called the Married Woman's Act of 1866, preserving her separate property to her. We do not deem it necessary to follow counsel over the entire field covered by their arguments. The case before us is not a suit by the attorneys for the wife against either her or her husband, after the termination of the alimony suit between them; and it would be ranging into the by-paths of obiter dictum to determine what might be ruled in such an action. Here the wife sued her husband for permanent alimony, and prayed for the allowance of temporary alimony and attorney's fees, under the statute; and incidentally a receiver was prayed. The parties settled their differences and desired to dismiss the case. The wife's attorneys objected, so far as it affected the allowance of attorney's fees, and prayed to be made parties, and to have fees awarded to them in that case.
Upon an application for the allowance of temporary alimony, including counsel fees, pending a suit for divorce, or permanent alimony, such allowance is not a matter of arbitrary right, under our statutes, but a matter to be determined by the use of a sound discretion applied to the facts of the case, the causes of the separation, and the circumstances of the parties. Civil Code, § § 2976, 2977, 2979; Parks v. Parks, 126 Ga. 437, 55 S.E. 176. In the opinion in the Parks Case the expression was used that the allowance of both alimony and counsel fees, or the allowance of one and the disallowance of the other, is a matter addressed to the sound discretion of the judge, after examination into the causes of the separation and the circumstances of the parties. This did not mean that the two things were wholly distinct, with the right to apply for one in the client and for the other in the attorney, but that, upon such an application by the wife, the judge might allow a sum for her support and also for counsel fees, one or both, or neither, if the evidence so authorized. This is made evident by considering that opinion in the light of the facts involved, and in connection with other decisions of this court and the language of the statute itself. Civil Code, § 2976; Sweat v. Sweat, 123 Ga. 801, 51 S.E. 716; Hughes v. Hughes, 133 Ga. 187, 65 S.E. 404. It has been said that the application for temporary alimony, including attorney's fees, should be made and determined pendente lite, but that a judgment for such fees based upon a verdict therefor was not a nullity. Van Dyke v. Van Dyke, 125 Ga. 492, 54 S.E. 537. In Weaver v. Weaver, 33 Ga. 172, on the hearing of an application therefor, an order was passed directing a husband to pay into court a certain amount to compensate counsel who represented the wife, and also an amount for the maintenance of the wife. After the case had been prepared, but before trial, it was dismissed. It was held that this operated to rescind the order as to the alimony proper allowed to the wife, but not as to the fees of counsel. It was said: "We see no reason for compelling counsel to resort to an independent action when his fees have been already adjudged." In view of this ruling, it was held in Roberts v. Roberts, 115 Ga. 259, 41 S.E. 616, 90 Am.St.Rep. 108, that when an application was made for the grant of alimony and attorney's fees, counsel for the applicant had such a pecuniary interest in the result that, under our statute, a judge related to him within the fourth degree was disqualified from presiding. What was said in the opinion must be considered in connection with the question before the court.
We are aware that there is some conflict of authority as to whether a court may refuse to dismiss a divorce case without the payment of attorney's fees to the wife's attorney, or whether an order for such fees may be granted before or in connection with the dismissal. It is unnecessary to discuss the basis of such decisions, or the English practice of taxing attorney's fees as costs. We think the decisions which rule that counsel for the wife cannot prolong such a suit against the wishes of their client are the sounder and more applicable to the statutory procedure in...
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