Rosser v. Rosser
| Decision Date | 07 December 1977 |
| Citation | 355 So.2d 717 |
| Parties | Robert George ROSSER v. Cindy Keith ROSSER. Civ. 1184-X. |
| Court | Alabama Court of Civil Appeals |
Marion F. Walker, Birmingham, for appellant and cross-appellee.
James M. Fullan, Birmingham, for appellee and cross-appellant.
The appellant-cross appellee, Cindy Keith Rosser, filed a complaint in the Circuit Court of Jefferson County, Birmingham Division, seeking a divorce from the appellee-cross appellant, Robert George Rosser. The wife's petition for divorce was brought on the grounds of incompatibility of temperament, irretrievable breakdown of the marriage and physical cruelty with danger (or apprehension of danger) to life or health. The husband filed a counterclaim alleging incompatibility of temperament, irretrievable breakdown of the marriage and adultery.
After the presentation of evidence by both parties the trial court rendered a decree dissolving the bonds of matrimony on the grounds of adultery. The husband was awarded custody of the couple's minor children; however, the wife received reasonable visitation privileges. 1 The decree further ordered the husband to pay the wife $1,500 as alimony in gross and another $32,000 as her share of the equity in the residence owned jointly by the two parties. The husband was also ordered to pay the wife's legal counsel the sum of $15,000 for services rendered in her behalf. The trial court subsequently modified that part of the decree which was related to visitation privileges and entered an order granting the wife the right of visitation with her children on alternate weekends, for a two week period each summer, and for a five day period each December.
The wife's appeal was dismissed at the request of her attorney. The cross appeal is from the portion of the trial court's decree awarding an attorney's fee in the amount of $15,000 and from the modified decree granting reasonable visitation of the children to the wife.
The first issue presented on appeal concerns the husband's contention that the trial court erred in awarding attorneys' fees to the wife. His argument with regard to this matter is two pronged: first, he claims that the wife forfeited her right to receive attorneys' fees by her misconduct; second, the husband maintains that the amount of the fee awarded was excessive.
The record before us reveals that the parties were married in the spring of 1972. They lived together until early fall of 1976. At the time of their divorce the husband was approximately forty years of age and the wife was approximately twenty-six years old. The husband is a physician specializing in colon-rectal surgery. Evidence at trial demonstrated his net worth to be approximately $500,000. In 1975 his gross income was $250,000. On the other hand, the wife performed the functions of a homemaker during the couple's marriage. The record indicates no other appreciable skills which would permit her to obtain employment outside the home. Nor is there any evidence that she is sufficiently skilled or educated to acquire a position which would produce the income necessary to pay the rather large attorneys' fees which were incurred in this case. Nonetheless, her health is good and in the past she has attended classes at Samford University in Birmingham.
Despite these facts, the husband contends that his wife is not entitled to the attorneys' fees which were awarded her because she openly admitted to several acts of fellatio during the couple's marriage. The law in Alabama and in other jurisdictions is to the effect that even in situations where a divorce is awarded to the husband on the grounds of his wife's adultery, attorneys' fees may nevertheless be awarded to the wife. Lunsford v. Lunsford, 232 Ala. 368, 168 So. 188 (1936); Coleman v. Coleman, 198 Ala. 225, 73 So. 473 (1916); Jaffe v. Jaffe, 74 App.D.C. 394, 124 F.2d 233 (1941); Foreman v. Foreman, 40 So.2d 560 (Fla.1949); Ganzer v. Ganzer, 110 Ill.App.2d 394, 249 N.E.2d 660 (1969); Nix v. Nix, 253 Miss. 565, 176 So.2d 297 (1965); Keyes v. Keyes, 252 Miss. 138, 171 So.2d 489 (1965); Dickenson v. Dickenson, 192 Misc. 635, 81 N.Y.S.2d 294 (1948); Wendland v. Wendland, 29 Wis.2d 145, 138 N.W.2d 185 (1965).
These decisions are based on a number of factors which must be considered in addition to the wife's misconduct. Paramount among these factors are: (1) the income of the husband and his financial ability to pay the counsel fees mandated; (2) the wife's ability to pay for legal representation; (3) the fact that issues such as a dispute over custody are intertwined with the suit for divorce; (4) the good faith of the wife in asserting her cause or presenting her defense; (5) the conduct of the husband; and finally, (6) the length of trial, the time required in its preparation and the services rendered by the attorney on behalf of his client.
In the instant case all these factors were present. The husband earns a substantial income as a surgeon while the wife does not possess the education or skill which would enable her to obtain the type of employment which might provide the income necessary to pay a $15,000 attorneys' fee. The husband's estate is valued at approximately $500,000. Conversely, the wife's estate is comparatively small; indeed, her only apparent assets are the $1,500 she received from her husband as alimony in gross and the $32,000 which represented the value of her interest in the couple's residence. Thus, it is clear that the husband is in a much better financial position than his wife to pay the attorneys' fees which were awarded by the trial court. 2
In addition, the custody of the child produced as a result of the parties' marriage and that of the wife's child by a prior union was at issue and the dispute over which of the parties would obtain custody of these two young children was significantly intertwined with the divorce proceedings. In a similar vein, the husband accused his wife of numerous acts of adultery, some of which were substantiated, although most were not. Because of these accusations considerable effort was expended in defending the wife's name and reputation; the wife asserted her defense in good faith and fairness demanded that the husband provide her with counsel fees to defend herself against his numerous allegations. Nor was the conduct of the husband irreproachable, there being a great deal of testimony (though much of it was in sharp conflict) to the effect that he physically abused his wife. Finally, the trial lasted four days and the attorneys who represented the wife expended a cumulative total of approximately 180 hours in preparation of the matter.
Therefore...
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