Williams v. Williams

• Decision Date: 11 July 1939
• Docket Number: 12676.
• Citation: 4 S.E.2d 195,188 Ga. 536
• Parties: WILLIAMS v. WILLIAMS.
• Court: Georgia Supreme Court

4 S.E.2d 195

188 Ga. 536

WILLIAMS v. WILLIAMS.

No. 12676.

Supreme Court of Georgia

July 11, 1939

Rehearing Denied July 27, 1939.

Syllabus by the Court.

A wife brought suit for divorce, permanent alimony, temporary alimony, and attorney's fees. At the appointed hearing of application for temporary alimony an order was granted continuing the time of hearing to a later date which also declared that: 'The defendant agrees to pay the plaintiff on this date the sum of thirty ($30.00) dollars, and weekly thereafter until said hearing, not as temporary alimony, but for her needed expense of living.' The hearing was again postponed. Afterwards the wife notified her attorneys in writing that she did not desire to prosecute the case any further, and requested them to dismiss the action. She did not attend the hearing last appointed, and could not be located for service of a subpoena. The attorneys announcing such facts to the court at such hearing moved to continue the prosecution in their own behalf, in order to prove and recover attorney's fees for the services rendered in the case by them. The judge permitted the hearing to proceed for such purpose, and, after introduction of evidence as to value of the services, awarded stated attorney's fees for services rendered by the attorneys up to the time of hearing. Held, in view of the statutes and public policy in this State relating to the subject, that the judgment awarding attorney's fees was an abuse of discretion by the judge, and must be reversed.

A wife instituted suit for divorce, for permanent and temporary alimony, for expenses of litigation, for injunction and receiver. The judge issued a rule nisi, and service was duly perfected. On the day set for interlocutory hearing a consent order was granted, postponing the hearing and providing further: 'The defendant agrees to pay the plaintiff on this date the sum of thirty ($30.00) dollars and weekly thereafter until said hearing, not as temporary alimony, but for her needed expenses of living.' The hearing was again postponed. The plaintiff addressed a written communication to her attorneys, stating: 'I do not wish the suit * * * to go any further. Please dismiss it at once.' The plaintiff failed to appear at the hearing last appointed. Her attorneys announced her request in open court, and stated that they desired to continue the prosecution on their own behalf, for attorneys fees for services rendered by them. The case was not dismissed, but was left pending on the docket, over objection of the defendant; and the judge directed that a hearing be immediately had upon the question of allowing attorney's fees up to that date. The hearing proceeded, and the plaintiff introduced evidence tending to show the case as indicated above, and as to values of the defendant's property and of the attorney's services. There was no evidence as to the cause of separation, or the financial or social circumstances of the wife. At conclusion of the evidence the judge ordered that the defendant, on or before a stated date, pay the attorneys $350 for services rendered to the date of hearing. To this judgment the defendant excepted on the grounds that the judge should have refused to allow attorney's fees, and that the judgment rendered was contrary to law, because the court was without jurisdiction to award attorney's fees for the reasons: (a) It appeared that the plaintiff had requested withdrawal of the action before award of the fees to her counsel. (b) It did not appear that the plaintiff and defendant had entered into any adjustment or settlement with respect to property or alimony before or at the time of the hearing. (c) The right of the plaintiff (wife) was not established.

M Warren Tenenbaum and Abrahams, Bouhan, Atkinson & Lawrence, all of Savannah, for plaintiff in error.

Oliver & Oliver, of Savannah, for defendant in error.

ATKINSON, Presiding Justice.

Application of the principle of public policy was discussed in Keefer v. Keefer, 140 Ga. 18, 78 S.E. 462, 463, 46 L.R.A.,N.S 527, decided by the entire bench of six Justices, in which, after institution of suit for alimony, the parties by private agreement resumed their marital relations, and the wife instructed her attorneys by letter to dismiss the case, without offering to pay them for their services. The judge refused to permit the attorneys to proceed for allowance of fees for their services in the case. The judgment refusing allowance of attorney's fees was affirmed. In the opinion it was said:

'Here the wife sued her husband for permanent alimony, and prayed for the allowance of temporary alimony and attorney's fees, under the statute; and incidentally a receiver was prayed. The parties settled their differences and desired to dismiss the case. The wife's attorneys objected so far as it affected the allowance of attorney's fees, and prayed to be made parties, and to have fees awarded to them in that case.

'Upon an application for the allowance of temporary alimony, including counsel fees, pending a suit for divorce, or permanent alimony, such allowance is not a matter of arbitrary right, under our statutes, but a matter to be determined by the use of a sound discretion applied to the facts of the case, the causes of the separation, and the circumstances of the parties. Civil Code, §§ 2976, 2977 2979; Parks v. Parks, 126 Ga. 437, 55 S.E. 176. In the opinion in the Parks Case the expression was used that the allowance of both alimony and counsel fees, or the allowance of one and the disallowance of the other, is a matter addressed to the sound discretion of the judge, after examination into the causes of the separation and the circumstances of the parties. This did not mean that the two things were wholly distinct, with the right to apply for one in the client and for the other in the attorney, but that, upon such an application by the wife, the judge might allow a sum for her support and also for counsel fees, one or both, or neither, if the evidence so authorized. This is made evident by considering that opinion in the light of the facts involved, and in connection with other decisions of this court and the language of the statute itself. Civil Code § 2976; Sweat v. Sweat, 123 Ga. 801, 51 S.E. 716; Hughes v. Hughes, 133 Ga. 187, 65 S.E. 404. * * *

'We are aware that there is some conflict of authority as to whether a court may refuse to dismiss a divorce case without the payment of attorney's fees to the wife's attorney, or whether an order for such fees may be granted before or in connection with the dismissal. It is unnecessary to discuss the basis of such decisions, or the English practice of taxing attorney's fees as costs. We think the decisions which rule that counsel for the wife cannot prolong such a suit against the wishes of their client are the sounder and more applicable to the statutory procedure in this state for obtaining temporary alimony, including counsel fees, as well as more in accord with public policy. There is no law authorizing attorneys, pending a suit for divorce or permanent alimony, to make application for the allowance of temporary alimony on their own behalf....