Smith v. Smith

• Decision Date: 16 December 1925
• Citation: 90 Fla. 824,107 So. 257
• Parties: SMITH v. SMITH.
• Court: Florida Supreme Court

107 So. 257

90 Fla. 824

SMITH v. SMITH.

Florida Supreme Court, Division A.

December 16, 1925

Suit by M. H. Smith against Flora A. Smith for divorce. From a decree for complainant, allowing an additional fee to defendant's solicitor, both defendant and complainant appeal.

Reversed in part, and affirmed in part.

Syllabus by the Court

SYLLABUS

Order for allowance of solicitor's fees should require money to be paid to wife or to clerk of court for use of solicitor. While the wife's attorney is the real party interested in obtaining the allowance of solicitor's fees, yet he is not a party to the suit, and the order should be that the amount allowed should be paid to the wife, or to the clerk of the court, for the use of the solicitor.

Stipulations between parties or their attorneys will ordinarily be enforced by courts, if not contrary to good morals or sound public policy. The general rule is that stipulations voluntarily entered into between the parties to a cause or their attorneys, for the government of their conduct and the control of their rights during the trial or progress of the cause, will be respected and enforced by the courts, where such stipulations are not contrary to good morals or sound public policy.

Party seeking relief against stipulation must make seasonable application, on legally sufficient grounds, in court to which cause is pending. In order to obtain relief against a stipulation, the party seeking it must make a seasonable application, upon legally sufficient grounds, to the court in which the cause is pending.

Where stipulation by parties as to alimony pendente lite and solicitor's fees was acted on in trial, final decree making additional allowance of fee to wife's solicitor was error. Where the parties to a divorce suit have agreed through their solicitors, by stipulation in writing as to what is a fair and reasonable sum to be allowed to the wife for alimony pendente lite and solicitor's fees, and there is nothing in the record to show that such agreement was obtained by fraud, misrepresentation, or mistake, and where such stipulation has been acted upon and payments made thereunder during the pendency of the suit, and no application for relief against such stipulation appearing in the record, it is error for the court, in its final decree to make an additional allowance of fee to the wife's solicitor, for services pendente lite expecially so where such decree grants to the complainant husband a divorce for the fault of the wife, and denies permanent alimony.

Appeal from Circuit Court, Duval County; George Couper Gibbs, judge.

COUNSEL

Van C. Swearingen, of Miami, and Wm. C. Guthrie, of Jacksonville, for plaintiff.

Austin Miller, of Jacksonville, for defendant.

OPINION

BROWN C.J.

This was a divorce suit brought by the husband against the wife upon the grounds of extreme cruelty and habitual indulgence in violent and ungovernable temper. The wife filed an answer and counterclaim, denying the allegations of the bill, and making charges against the husband of conduct of a somewhat similar nature to that charged against her, and praying alimony both pendente lite and permanent, and the exclusive custody of the children. Soon after the bill was filed, a stipulation was entered into between the parties, through their respective solicitors, and filed in court, fixing $150 as a reasonable temporary solicitor's fee to be paid by the complainant to the defendant, and providing that complainant should also pay a certain amount per month as house rent for the house occupied by the defendant, and a certain sum per month as alimony pendente lite, which amounts it appears were paid. The stipulation provides that the payment of the said sums 'shall be in lieu of, and in payment of, all claim or claims of the defendant and her counsel as and for temporary solicitor's fees, alimony pendente lite, and suit money,' etc. A special master was appointed, considerable testimony taken, and about six months later the master's report and findings were filed, which were in favor of the contentions of the complainant husband and adverse to those of the wife on all points. In the final decree, the court in the main followed the findings and recommendations of the special master, but sustained the defendant's exception to that part of the master's findings to the effect that the defendant was not entitled, on the evidence, to temporary alimony, suit money, and attorney's fees. The court also found the equities in favor of the complainant, husband, and awarded the custody of the children to him, disallowing the counterclaim of the wife for the custody of the children and permanent alimony, but allowing the defendant to visit the children at certain stated times; and, as amended by a subsequent nunc pro tunc order, the court also ordered that the complainant pay to 'W. C. Kent, as solicitor of record for the defendant,' the sum of $750, in addition to the sum of $150 therefore paid, which the court ascertained to be a reasonable fee for the services of the defendant's solicitor therein. The complainant filed a motion to modify the final decree by striking this latter provision therefrom, which motion was denied.

From said final decree, the defendant took an appeal to this court, assigning various errors, including the action of the court in awarding the custody of the children to the complainant husband, the dismissing of the defendant's counterclaim, and the failure to grant permanent alimony. The complainant also appealed from the decree, assigning as errors that part of the decree providing for the payment by the complainant of an additional sum of $750 as solicitors' fees, and that part allowing the defendant to visit the children at certain stated times. After appeal was taken, a stipulation was filed in this court providing that the complainant in the court below should pay the sum of $350 as a reasonable solicitors' fee for the prosecution of the appeal taken by the wife. Subsequently, and after the filing of briefs in this court, the appellant, defendant in the court below, filed a formal abandonment of all of her assignments of error. The only assignment of error now insisted upon is that made by the cross-appellant, complainant in the court below, attacking paragraph 9 of the final decree as amended by nunc pro tunc order, providing:

'That the complainant do pay to W. C. Kent as solicitor of record for Flora A. Smith the sum of $750, which amount, in addition to the $150 heretofore paid by the complainant to the defendant, is found to be a reasonable fee for the services of the solicitors for the defendant herein.'

Section 3194 of the Revised General Statutes of 1920 reads as follows:

'In every suit by a wife for a divorce founded upon any of the grounds mentioned in section 3191, she may in the bill for divorce, or by petition, claim alimony and suit money, and, if the bill seems well founded, the court shall allow a reasonable sum therefor. Or if a wife defendant in any suit for divorce shall in her answer, or by petition, claim alimony or suit money, and the answer or petition shall seem well founded, the court shall allow a reasonable sum therefor.'

In Nelson on Divorce and Separation, § 854, it is said:

'When the wife applies for temporary alimony and suit money, she must show that she has a probable cause for divorce, or, if she is the defendant, that she has a valid defense to the suit. This is required to prevent imposition upon the court and to protect the husband from being compelled to assist the wife in her suit where she has no cause of action, and the suit must fail. Generally the court refuses to enter into an examination of affidavits to determine the merits of the case before allowing alimony. But the pleadings are inspected, and alimony is refused if her pleadings do not state a cause of action or a defense.'

And in section 875 we find the following:

'The term 'suit money' is broad enough to include solicitor's fees and all costs and expenses of the divorce proceedings. The rules for the application for and practice in granting suit money do not differ materially from those governing temporary alimony. Suit money is in fact a specific part only of the temporary alimony, and is granted under the same conditions. It is likewise subject to the order of the court, and may, at its discretion, be increased or diminished with the varying necessities of the case.'

In Phelan v. Phelan, 12 Fla. 449, on page 456, it was said, speaking of temporary alimony:

'This allowance is not a matter of right in the wife. It is a creature of the ecclesiastical courts, the purpose of which is to aid the wife to have justice done when she is without means, and makes a prima facie case in her pleadings; and is never awarded when the wife fails in her suit, and the making of the order for it is postponed to the hearing.'

In Sanchez v. Sanchez, 21 Fla. 346, it was held that an order for alimony and suit money made on the application of the wife, where it did not appear by the record that the husband was duly notified of the motion, and had an opportunity of opposing same, would be set aside.

Both these cases were decided...