Walters v. Walters

• Decision Date: 06 December 1937
• Docket Number: 32857
• Citation: 177 So. 507,180 Miss. 268
• Court: Mississippi Supreme Court
• Parties: WALTERS v. WALTERS

177 So. 507

180 Miss. 268

WALTERS v. WALTERS

No. 32857

Supreme Court of Mississippi

December 6, 1937

Division A

Suggestion Of Error Overruled January 17, 1938.

APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Suit by Mrs. Pearl Cheek Walters against L. E. Walters. From a decree for plaintiff, defendant appeals, and plaintiff moves for an allowance of an attorney's fee in the Supreme Court. Decree affirmed, and motion sustained in accordance with opinion.

Decree affirmed and motion sustained.

Harold Cox, of Jackson, for appellant.

The lower court was and is without authority to award the appellee an attorney's fee for the prosecution of this suit.

Amis, Divorce & Separation, sec. 178; Bradford v. Bradford, 31 So. 963, 80 Miss. 467; Robinson v. Robinson, 72 So. 923, 112 Miss. 224.

The decree of the Chancery Court of Hinds County in the divorce cause between the parties, entered on December 21, 1934, is res judicata as to the liability of appellant for the support of the child and precludes any additional award therefor.

31 C. J., page 1166, sec. 355; Memphis Stone & Gravel Co. v. Archer, 82 So. 315, 120 Miss. 453; Cocks v. Simmons, 57 Miss. 183; McLemore v. Chicago, St. L. & N. O. R. R. Co., 58 Miss. 514; Gusdofer v. Gundy, 16 So. 432, 72 Miss. 312; Burkitt v. Burkitt, 81 Miss. 593, 33 So. 417; Malone v. Malone, 131 So. 870, 159 Miss. 138; Maxey v. Maxey, 120 So. 179, 152 Miss. 454; Warner v. Warner, 167 So. 615, 175 Miss. 476; Yarborough v. Yarborough, 290 U.S. 202; Kettenring v. Kettenring, 163 N.E. 43; Section 1421, Code of 1930.

When alimony is commuted to a lump sum, to be paid presently, as in this case, in fixing the amount the court takes into consideration the possible remarriage of the wife to a husband able to support her, and any and all other contingencies which might arise. It is a settlement between the husband and the wife as to the interest of the latter in his property, and as to the extent of the husband's duty to contribute to her maintenance and support. The decree is final after the term at which it is rendered.

Guess v. Smith, 100 Miss. 457, 56 So. 166; Williams v. Williams, 127 Miss. 627, 90 So. 330; Clark v. Clark, 133 Miss. 744, 98 So. 157; Miller v. Miller, 159 So. 112, 173 Miss. 44; Armstrong v. Armstrong, 33 Miss. 279; 9 R. C. L., page 459, sec. 270.

It is therefore earnestly submitted that the lower court was without the power or authority in June, 1937, to award the appellee a decree against the appellant for any additional amount for the support of the child, since the appellant had fully discharged his liability in such respect by having paid the lump sum award provided by the decree entered by procurement of the appellee and her counsel on December 21, 1934.

The decree of the court in this cause is not responsive to any dependable evidence, and is based on conjecture and speculation.

Tyson v. Utterback, 122 So. 496, 154 Miss. 381; Holmes v. Holmes, 123 So. 865, 154 Miss. 713; Tarver v. Lindsey, 137 So. 93, 161 Miss. 379.

The court in the final decree entered on December 21, 1934, directed the appellant to pay the appellee a stated amount until the total sum of $ 200 should be paid in full settlement of all alimony for herself and support money for the child. The appellant was also directed by said decree to pay appellee's attorney's fees. This decree was entered by the procurement of the appellee herself. In her testimony she stated. "My attorney did that. He advised me that it was the best thing to do." It is the appellant's position that this decree became final when no appeal was taken therefrom, and that since the amount awarded the appellee was a lump sum award, that the lower court was without authority to make another ant additional award and allowance to the appellee in the same cause after the original final decree had been discharged.

This is not a proceeding between a husband and a wife concerning their matrimonial relations, and a case is not, therefore, presented which this court will recognize as a proper one for the allowance of an attorney's fee.

Robertson & Robertson, of Jackson, for appellee.

The Chancery Court had authority to award the appellee a fee for the services of an attorney in that court, and the Supreme Court has authority to grant an additional fee for defending against this appeal.

Newson v. Newson, 146 So. 473.

The decree of the Hinds County Chancery Court in the divorce cause between the parties, entered on December 21, 1934, was not a final determination of the rights of the child of the marriage to support from its father, the appellant herein.

Section 1421 Code of 1930; Worthington v. Worthington, 117 So. 645; Dickey v. Dickey, 58 A. L. R. 639; Kearney v. Kearney, 174 So. 59; Garland v. Garland, 50 Miss. 694; Dickerson v. Brown, 49 Miss. 357; 1 Bishop on Marriage & Divorce, 272.

The duty of support on the part of the father is a continuing one which is not terminated on the granting of a divorce, or awarding the custody to the mother.

Amis on Divorce and Separation, page 317; Lee v. Lee, 135 Miss. 865, 10l So. 345; Lewis v. Lewis, 163 P. 42, 174 Cal. 336; Boggs v. Boggs, 114 A. 474, 138 Md. 422; Hertzen v. Hertzen, 208 P. 580, 104 Or. 423; Spencer v. Spencer, 97 Minn. 56, 105 N.W. 483, 114 A. S. R. 695.

We are not contending in this case now that the divorce decree awarding Mrs. Walters, the appellee, alimony in the sum of $ 200 is not res adjudicata as to her, but we are contending that such decree is not res adjudicata as to the duty of the father to support his minor child, who was one year old at the time of the divorce decree, until the child is twenty-one years of age.

Mayer v. Mayer, 154 Mich. 386, 117 N.W. 890, 19 L. R. A. (N. S.) 245, 129 Am. St. Rep. 477; Rowe v. Rowe, 76 Or. 491, 149 P. 553; Levine v. Levine, 95 Or. 94, 187 P. 609.

The decree of the Chancery Court here appealed from is responsive to the dependable evidence introduced, and is based on the ability of the appellant to support his child, after that court had heard and considered the evidence and had observed both the appellant and appellee and all of their witnesses on the stand.

The court below properly allowed a fee to appellee's solicitors, but only for their services in that court. The Mississippi Supreme Court has always allowed reasonable fees for services of solicitors in this court in this class of cases.

Hall v. Hall, 27 So. 636, 77 Miss. 741; Everett v. Everett, 81 So. 417, 119 Miss. 627; Brown v. Brown, 85 So. 180, 123 Miss. 125; Watts v. Smylie, 116 Miss. 12, 76 So. 684; Boyett v. Boyett, 119 So. 299, 152 Miss. 201; Kearney v. Kearney, 174 So. 59.

Supporting the contention that the court below properly allowed a fee to the solicitors for the appellee in the case at bar for their services in that court are the following cases:

Chambers v. Chambers, 75 Neb. 850, 106 N.W. 993; Blake v. Blake, 70 Wis. 238, 35 N.W. 551; Roberts v. Roberts, 135 Minn. 397, L. R. A. 1917C, 1140, 161 N.W. 148; Worthingon v. Worthington, 111 So. 224, 215 Ala. 447; Baker v. Baker, 114 So. 661, 94 Fla. 1001.

It is generally held that appellate courts have jurisdiction to order an allowance of alimony pending an appeal and counsel fees for the wife's defense. This., is done to enable the wife to maintain her rights on the appeal as an incidental power in the court where the cause is pending.

Franklin v. Franklin, 109 Miss. 163, 68 So. 74; Smithson case, 113 Miss. 644, 74 So. 609; Parker v. Parker, 71 Miss. 164, 14 So. 459.

OPINION

Smith, C. J.

In December, 1934, the appellant and the appellee were husband and wife, having one child, a daughter about nine months old. On December 24th of that year the chancery court of Hinds county, on the complaint of the wife, the appellee here, dissolved the bonds of matrimony existing between her and her husband, granted her the custody of the child, and directed "that said L. E. Walters, pay to the said Mrs. Pearl Cheek Walters the total sum of $ 200.00 in full settlement of all alimony for herself and support money for said child, Dorothy Carroll Walters, and that said $ 200.00 be paid as follows: $ 15.00 immediately upon the signing of this decree, and $ 15.00 per month, payable upon the 21st of each month hereafter until the balance of' $ 185.00 is paid in full." This support fund was thereafter paid the appellee by the appellant.

In January, 1937, the appellee filed a petition in the court below, which granted the decree of divorce, setting forth in substance that the appellant had made no further contributions to the support of the child; that when the decree was rendered the appellee was earning a small amount of money herself but is now, and has been for some time, unable to earn any money whatever, and that she is without means for the support of the child, which, in addition to food, lodging, and clothing, needs certain specifically set forth medical attention. The appellant, by an answer, denied his further liability under the decree of divorce for the support of the child, and further denied that any facts existed which would warrant a change being made in the decree relative there-to, under section 1421, Code of 1930. That section is as follows:

"When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody, and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife, or any...