White v. Bowen, 23773

• Decision Date: 09 February 1967
• Docket Number: No. 23773,23773
• Citation: 153 S.E.2d 706,223 Ga. 94
• Parties: Houston WHITE v. Robert Blair BOWEN, Sr., et al.
• Court: Georgia Supreme Court

Page 706

153 S.E.2d 706

223 Ga. 94

Houston WHITE v. Robert Blair BOWEN, Sr., et al.

No. 23773.

Supreme Court of Georgia.

Feb. 9, 1967.

Rehearing Denied Feb. 23, 1967.

Syllabus by the Court

The allowance of attorney's fees in an action for divorce and alimony as a part of the expenses of litigation (Code § 30-202) is for the benefit of the wife to enable her to contest the issues between herself and her husband, and the provision of the alimony judgment awarding such attorney's fees can not be enforced by the attorney in his own name by attachment for contempt or by writ of fieri facias.

In the final judgment and decree in the divorce action between Evelyn H. Bowen and Robert Blair Bowen, Sr., a divorce was granted to the wife and provision was made for permanent alimony. The decree contained the following paragraph: 'The plaintiff is hereby awarded as part of the permanent alimony, for the purpose of prosecuting this action and defending the case brought against her, shall receive the sum of $2,000.00 as attorney's fees, said amount to be paid at the rate of $200.00 per month and said payments to begin on the 1st day of March, 1966, and shall continue until the full amount of $2,000.00 is paid.'

Houston White, alleging that he was attorney of record representing Mrs. Bowen throughout the case, filed a motion to adjudge Robert Blair Bowen, Sr., in contempt of court for failure to pay the installments of attorney's fees due under the decree, and also prayed that fieri facias issue for the payments in arrears. He alleged that Mrs. Bowen had died testate since the final decree in the case. He named as respondents Robert Blair Bowen, Sr., and Anita Bowen Wishon, as executrix of the estate of Mrs. Evelyn H. Bowen. By amendment to his motion he alleged that by written agreement Mrs. Bowen agreed to pay him $5,000 for his services and such 'additional fees as the court may allow,' that Mrs. Bowen was under a duty as trustee to recover the unpaid balance of $1,800 as attorney's fees for his use, and that her executrix succeeds to the duties of her mother to prosecute the rule for contempt and to have fieri facias issue against Robert Blair Bowen, Sr. He prayed that the judgment in the rule for contempt be styled Anita Bowen Wishon, as executrix of the estate of Mrs. Evelyn H. Bowen, deceased, for the use of Houston White, and that Robert Blair Bowen, Sr., be adjudged in contempt.

After a hearing the trial judge denied the motion to hold Robert Blair Bowen, Sr., in contempt of court, and to issue fieri facias against him. Houston White filed an appeal from this order.

Houston White, Red Oak, for appellant.

Charles H. Edwards, H. A. Stephens, Jr., Claude E. Hambrick, Atlanta, for appellees.

COOK, Justice.

While many legal question are made by this appeal, the controlling issue is whether an attorney can enforce the provisions of an alimony decree for attorney's fees by attachment for contempt or by writ of fieri facias against the husband of the attorney's deceased client.

Code § 30-204 provides: 'The order allowing alimony shall be subject to revision by the court at any time, and may be enforced either by writ of fieri facias or by attachment for contempt against the person of the husband * * *' None of the cases cited by the appellant hold that an attorney in his own name can enforce the provisions of an alimony decree.

In Weaver v. Weaver, 33 Ga. 172, it was held: 'Where alimony has been granted to the wife, and fees ordered to be paid her counsel pending a libel for divorce, and the libel is subsequently dismissed without trial, the order for alimony will be rescinded, but not that for the fees of counsel.' No ruling as to the enforcement of this order was involved in the case.

In Roberts v. Roberts, 115 Ga. 259, 41 S.E. 616, 90 Am.St.Rep. 108, it was held that a judge would be disqualified who was related within the prohibited degree to counsel for the wife, where attorney's fees were sought in connection with an alimony case. In that case the question of whether counsel might enforce in his own name a judgment for attorney's fees was discussed but not decided.

In Bennett v. Bennett, 157 Ga. 848, 122 S.E. 616, this court affirmed the judgment entered by the trial judge against the husband for attorney's fees in a divorce and alimony case, where the parties had reached a settlement of the alimony issue without consent of counsel. No question of the enforcement of this judgment was involved.

The appellant cites Thomas v. Smith, 185 Ga. 243, 194 S.E. 502, as the only physical precedent in this state his research has disclosed where an attorney in his own name ruled a husband in contempt for failure to pay an award of attorney's fees in a divorce and alimony case. In the Thomas case the parties had reconciled since the award of attorney's fees. This court quoted from Walden v. Walden, 171 Ga. 444(2), 155 S.E. 919, as follows: 'A judgment that the attorney for the petitioner in a suit for alimony should recover a stated sum as attorney's fees will be construed as a judgment that the plaintiff recover as attorney's fees the amount stated.' It was then held that the subsequent voluntary cohabitation of the parties rendered void a judgment...