Stuart v. Stuart

• Decision Date: 20 December 1944
• Docket Number: 30006.
• Parties: STUART v. STUART.
• Court: Ohio Supreme Court

58 N.E.2d 656

144 Ohio St. 289

STUART v. STUART.

No. 30006.

Supreme Court of Ohio

December 20, 1944

Appeal from Court of Appeals of Lucas County.

The plaintiff filed a petition for alimony alone in the Court of Common Pleas of Lucas county, and the defendant filed an answer and cross-petition for divorce, to which plaintiff filed a reply and answer. Issue having been joined on these pleadings, the court, after a trial lasting several weeks awarded alimony to the plaintiff and denied a divorce to the defendant.

The Court of Appeals affirmed the judgment and this court allowed a motion to certify the record.

Eva Epstein Shaw and Morris A. Epstein, both of Toledo, for appellant.

Fraser Shumaker, Kendrick & Winn, of Toledo, for appellee.

PER CURIAM.

This court has determined that there is prejudicial error in the record in two respects: (1) In refusing to allow additional attorney fees for the plaintiff and (2) in making an order with respect to the sale of the premises, which would deprive the plaintiff of inchoate dower.

During the pendency of the action and before trial the plaintiff, on motion, was allowed the sum of $50 to apply on attorney fees but when the final judgment was entered, the journal entry recited that 'plaintiff is not entitled to the payment of attorney fees.' No further allowance of fees was ever made.

That the trial court in the exercise of a sound discretion has power to make a reasonable allowance for attorney fees is undoubted. By the provisions of Section 11994, General Code the court on notice to the adverse party 'may grant alimony to either of the parties for his or her sustenance and expenses during the suit.' The term 'expenses' properly includes attorney fees. The power of the trial court to allow attorney fees does not cease upon the making of an allowance therefor on a motion pendente lite. If a sufficient amount has not been previously allowed the trial court may allow fees, reasonable in amount, in entering final judgment.

It is the holding of this court that the refusal of the trial court to make further allowance of fees constituted an abuse of discretion. The services of plaintiff's counsel were rendered not only in connection with the alimony proceeding, but also in the defense of the cross-petition for divorce in a trial of long duration. Alimony awarded on final hearing was given solely for support and maintenance. The only recourse of the plaintiff is to pay her counsel out of such alimony. Reasonable attorney fees should be allowed in addition to the $50 originally fixed on hearing pendente lite.

The second question relates to plaintiff's right to inchoate dower as heretofore stated. To understand this phase of the case we quote the provision of the journal entry with respect to the premises in which plaintiff lives and the allowance of...