Sweat v. Sweat

• Decision Date: 04 August 1905
• Citation: 123 Ga. 801,51 S.E. 716
• Parties: SWEAT. v. SWEAT.
• Court: Georgia Supreme Court

123 Ga. 801

51 S.E. 716

SWEAT.

v.SWEAT.

Supreme Court of Georgia.

Aug. 4, 1905.

Divorce — Temporary Alimony — Counsel Fees.

On the hearing of an application for "temporary alimony, including expenses of litigation, " the judge may allow as counsel fees such sum as in his discretion appears proper under all the facts and circumstances of the case, although there is no evidence before him fixing any amount as the value of the services rendered and to be rendered by the plaintiff's counsel.

[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce, § 613.]

(Syllabus by the Court.)

Error from Superior Court, Clinch County; T. A. Parker, Judge.

Action by Lula E. Sweat against S. A. Sweat. From a judgment allowing a certain sum in alimony, defendant brings error. Affirmed.

Lula E. Sweat brought suit for divorce against her husband, S. A. Sweat and, pending the suit, filed an application for an allowance for temporary alimony and counsel fees. The application was submitted to the judge on affidavits for both parties, such affidavits relating entirely to the conduct and character of the husband. There was no evidence before the judge as to the husband's financial condition, but be admitted, in his answer to the suit, that he was sheriff of Clinch county, that the income from his office was from $900 to $1,000 a year, that he had 12 shares of bank stock worth $1,200, and that he owned real estate worth $2,500. The judge allowed the plaintiff $20 per month for her support and $75 counsel fees. The defendant excepted. The only contention made by the plaintiff in error in this court is that, as there was no evidence of the value of the services of the plaintiff's counsel, it was erroneous to allow any sum as counsel fees.

Toomer & Reynolds, R. G. Dickerson, and S. C. Townsend, for plaintiff in error.

Wilcox & Johnson and Walter T. Dickerson, for defendant in error.

COBB, J. The Code provides that in applications for temporary alimony, "after hearing both parties, and evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the husband and the facts of the case may justify." Civ. Code 1895, § 2457. The only requirement of the Code is that the court shall hear evidence of the marriage and of all the facts and circumstances of the marriage before allowing temporary alimony, which shall include expenses of litigation, under which head falls counsel fees. The judge may hear the testimony of expert witnesses on the value of the services of the plaintiff's counsel. But is he bound to do this? Counsel fees are allowed as a part of the wife's maintenance, to enable her to litigate the questions at issue between herself and her husband, and are as necessary as an allowance for support. Sprayberry v. Merk, 30 Ga. 81, 76 Am. Dec. 637. In Campbell v. Campbell, 67 Ga. 423, while there was evidence as to the value of the services of counsel, it was held that "the sum allowed for counsel fees and support pendente lite are dependent on the circumstances of the parties and the facts of the case. * * * It is much in the discretion of the chancellor to fix fees and the amount needed for support." While the judge may hear the evidence of attorneys as to the value of the services of the plaintiff's counsel, he is not bound by such evidence, but may award a less amount than the services may appear therefrom to be worth. Dicken v. Dicken, 38 Ga. 663, 670. It has also been held that a jury is not bound absolutely by the testimony of an expert witness as to what would be reasonable...