Parker v. Parker

• Decision Date: 06 November 1893
• Citation: 71 Miss. 164,14 So. 459
• Court: Mississippi Supreme Court
• Parties: F. M. PARKER v. CALLIE PARKER

14 So. 459

71 Miss. 164

F. M. PARKER v. CALLIE PARKER

Supreme Court of Mississippi

November 6, 1893

October 1893

FROM the chancery court of Lauderdale county, HON. W. T. HOUSTON Chancellor.

Appellant filed a bill against the appellee for a divorce. The defendant answered, denying the material allegations of the bill, and made her answer a cross-bill, alleging, as against the complaint, various grounds for a divorce. She prayed for alimony pendente lite, in a sum sufficient for her support and an allowance for counsel fees and other expenses of the suit. She also prayed the court on final hearing to make a permanent allowance of alimony. The cross-bill was answered and defendant made a motion for the allowance of alimony pending the suit, and for counsel fees. On this application testimony was heard, from which it appeared that the wife was without means of support; that the husband owned property of the value of about $ 1,500, after deducting the amount of certain incumbrances, and had an income of about eighty-five dollars per mouth. The application was sustained, and an order for temporary support and counsel fees was made. For the support, twenty dollars per month was allowed, together with the use of the homestead owned by the husband; and he was required by the decree to pay all taxes, insurance premiums and certain building and loan dues accruing thereon but he was to be credited with any amount to be received by the wife for rent of part of the homestead. An allowance of $ 150 was made for counsel fees, which the decree directed paid to her solicitors. From this decree complainant appealed. The opinion contains a further statement of the case.

Decree reversed.

Cochran & Bozeman, for appellant.

1. The motion was for temporary alimony and counsel fees. The rule in this state is to allow the wife about onethird of the husband's estate as permanent alimony. Armstrong v. Armstrong, 32 Miss. 279; Verner v. Verner, 62 Ib., 260; McFarland v. McFarland, 64 Ib., 449. Mr. Bishop says that the ordinary rule of temporary alimony is to allow the wife about one-fifth of the joint income. When the necessities of the wife have been large, one-fourth has been allowed. 2 Bish. on Mar. & Div., § 460.

Charging the husband in this case with insurance, taxes and building and loan dues, it will appear from the record that the appellee was allowed, as temporary alimony, about three-fourths of the total net income.

2. We respectfully submit that the allowance of $ 150 counsel fees was exorbitant. On this point, we refer to Baldwin v. Baldwin, 6 Gray (Mass.), 341. The evidence shows that appellee could have obtained the services of the best counsel for $ 100.

J. R. McIntosh and G. Q. Hall, for appellee,

Each filed a separate brief, making the following points, and rely mainly upon the same authorities:

1. The court allowed for the support of the wife a little over one-fifth of the undisputed income. Mr. Bishop says that about one-fifth is regarded as a fair medium, though the proportion will vary according to circumstances. The amount of alimony is a matter of discretion with the court, to be exercised with reference to an equitable view of the circumstances of each case, the general rule being that the wife is entitled to a support corresponding to her rank and condition in life and the estate of her husband. 2 Bish. on Mar. & Div., § 460; Armstrong v. Armstrong, 32 Miss. 290; Porter v. Porter, 41 Ib., 118; Verner v. Verner, 64 Ib., 184; McFarland v. McFarland, 64 Ib., 449.

The issue was fairly presented, and this court will not disturb the finding of the court below, unless clearly against the evidence. The parties testified personally before the chancellor, and he had the opportunity to observe their manner and conduct, and was in a better position to judge of the amount to be allowed...