Law v. Wilhite
| Citation | 225 Tenn. 415,3 Pack 415,470 S.W.2d 8 |
| Parties | , 225 Tenn. 415 Bruce LAW and Marvin Brooks Norfleet, Appellants, v. Joe Lynn WILHITE, Appellee. |
| Decision Date | 02 August 1971 |
| Court | Supreme Court of Tennessee |
Bruce Law, Marvin Brooks Norfleet, pro se.
John T. Wilkinson, Jr., Memphis, for appellee.
This case comes to this Court from the action of the trial judge sustaining a demurrer to the declaration dismissing the case. In this opinion we will refer to the parties as they appeared in the trial court; that is, Bruce Law and Marvin Brooks Norfleet as plaintiffs, and Joe Lynn Wilhite as defendant. The facts admitted here upon demurrer giving rise to this action are as follows:
On September 11, 1968, Shirley Wilhite, wife of defendant, filed her suit for divorce, obtaining from the court an order restraining defendant from 'harming or threatening bodily harm to her.' Among other things, she prayed for alimony, child support, and attorneys' fees pendente lite. On October 16, 1968, defendant filed an answer and a cross-bill for divorce. At this stage of the proceedings, plaintiffs, as attorneys for Shirley Wilhite, entered this divorce case for the first time. On October 23, 1968, Shirley Wilhite, by written agreement, employed plaintiffs to represent her in this divorce proceeding and obligated herself to pay plaintiffs certain stated or computable amounts. Plaintiffs prepared an amendment to the original bill and answer to the cross-bill, filing same on November 12, 1968. Plaintiffs continued their work as attorneys for Shirley Wilhite and on February 5, 1969, took the pre-trial deposition of defendant. The parties thereafter became reconciled and on January 5, 1970, the original bill and cross-bill were dismissed without prejudice.
On May 19, 1970, plaintiffs filed the case now before the Court against defendant, as he husband of Shirley Wilhite, to recover fees due for services rendered Shirley Wilhite in the divorce action on the ground such legal services were 'necessaries' justifying Shirley Wilhite pledging the credit of defendant in order to secure same. To this action a demurrer was filed and sustained on the ground the allegations in this bill did not state a cause of action.
In Greggory v. Greggory, 1 Tenn.App. 570 (1925), the wife brought suit against her husband seeking support for herself and their children. The gist of the bill was that the wife and children were destitute while the husband had means for their necessary support but failed or refused to provide such. The husband induced the wife to sign an agreement whereby he agreed to furnish her and the children their necessary support and the wife's bill was dismissed. Attorneys employed by the wife to file her petition then filed their petition to have the court fix a reasonable attorneys' fee, which petition was treated as an original bill against the husband. The Court held the husband liable for his wife's attorneys' fees and in the course of the opinion quoted from 30 C. J. Husband and Wife §§ 147, 155 and 153, as follows:
'Where the husband without good cause deserts the wife and fails to furnish her with such support as his means will warrant, the services of attorneys in instituting and prosecuting a statutory suit or proceeding to compel the husband to maintain the wife becomes an immediate necessity of the wife for which the husband is liable as much as he would be for necessary food or clothing purchased by the wife on the husband's credit.' Id., sec. 155.
'Where it appears that a suit for judicial separation or divorce a mensa et thoro, is for the protection and support of the wife, and the conduct of the husband is such as to render its institution and prosecution reasonable and proper, or, in other words, where the suit is reasonably and justifiably instituted, the wife's attorney may recover, in an independent action against the husband, for his services.' Id., sec. 153. 1 Tenn.App. at 573.
In Haynes v. Haynes, 192 Tenn. 486, 241 S.W.2d 540 (1951), the wife brought suit against her husband for separate maintenance and later amended to pray for an absolute divorce. The gist of the action was that the husband, although financially able to provide for the wife and their infant child, had failed or refused to do so. Following the filing of the original petition and amendment thereto the parties were reconciled and the wife's petition dismissed. Whereupon the attorney employed by the wife to file her petition then filed his petition to recover attorney's fees from the husband for services rendered the wife. This cause then came to this Court as a discretionary appeal after the overruling of a demurrer. This Court held, under these circumstances, there could be a recovery with the right to recover depending upon whether or not the wife was justified in pledging her husband's credit in order to secure legal assistance. In the course of this opinion the Court quoted from Schouler Divorce Manual, Section 237, as follows:
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