Powell v. Lilly

• Decision Date: 13 May 1902
• Citation: 68 S.W. 123
• Parties: POWELL v. LILLY. [1]
• Court: Kentucky Court of Appeals

68 S.W. 123

POWELL v. LILLY. ^[1]

Court of Appeals of Kentucky.

May 13, 1902

Appeal from circuit court, Madison county.

"Not to be officially reported."

Action by J. H. Powell against Margaret J. Powell for divorce. Judgment requiring plaintiff to pay a fee to defendant's attorney, G. E. Lilly, and plaintiff appeals. Affirmed.

H. C Hazelwood and R. H. Crooke, for appellant.

Grant E. Lilly, in pro. per.

BURNAM J.

The appellant, J. H. Powell, brought this action for divorce against his wife, Margaret J. Powell, on the ground that they had lived separate and apart without cohabitation for more than five years. The defendant denied the alleged grounds of the divorce, and, in the second paragraph of her answer charged that her husband has sold a very considerable amount of land belonging to her, and held the money in trust for her use and benefit, and asked, in the event a divorce was granted, that he be compelled to account therefor. In the third paragraph she charged that he was reasonably worth the sum of $60,000, and asked for temporary and permanent alimony. Shortly after the filing of this answer the suit was dismissed by agreement of parties, whereupon the attorney for the defendant moved the court for an allowance and, upon oral proof heard at the bar, adjudged a fee of $250. And we are asked to reverse this judgment.

Section 900 of the Kentucky Statutes provides that, in action for alimony and divorce, the husband shall pay the cost of each party, unless it shall be made to appear in the action that the wife is in fault, and has ample estate to pay the same. And this cost includes a reasonable fee to the wife's attorney, no matter how the action may have terminated unless the wife was in fault, and has ample estate to pay the cost. And the burden is on the husband to show both the fault and the estate. And the fact that the parties become reconciled before trial, and the action is dismissed by direction of the wife, does not relieve the husband from liability for the fee of the wife's attorney. See McMakin v. Wickliffe, 16 Ky. Law Rep. 240; Callender v. Callender, 15 Ky. Law Rep. 63. In determining the fee allowed, the court should look both to the character of the services, and the husband's pecuniary ability. The uncontroverted averments of the answer are to the effect that plaintiff is a man of large means, and the uncontradicted testimony in the bill of exception is to the...