Opinion
6 Div. 846.
May 22, 1941.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
Morel Montgomery, of Birmingham, for appellant.
The court below had no power to modify the former decree, no such power having been reserved. Morgan v. Morgan, 211 Ala. 7, 99 So. 185; Id., 203 Ala. 516, 84 So. 754; Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911. The modified allowance is inadequate and improper. Code 1923, § 7419; Adams v. Adams, 229 Ala. 588, 159 So. 80; Davieson v. Davieson, 192 La. 44, 187 So. 49. Remarriage-does not ipso facto.terminate alimony. Morgan v. Morgan, supra; Sullivan v. Sullivan, supra. Appellant was entitled to allowance of solicitor's fee for representing her in this contest. Worthington v. Worthington, 215 Ala. 447, 111 So. 224.
Ralph E. Parker, of Birmingham, for appellee.
Equity court may modify alimony installments though no power of modification is reserved in decree. Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911; Morgan v. Morgan, 211 Ala. 7, 99 So. 185; Littleton v. Littleton, 224 Ala. 103, 139 So. 335; Epps v. Epps, 218 Ala. 667, 120 So. 150; Bridges v. Bridges, 227 Ala. 144, 148 So. 816; Code 1923, § 7418; Aiken v. Aiken, 221 Ala. 67, 127 So. 819; Johnson v. Johnson, 195 Ala. 641, 71 So. 415; Wells v. Wells, 230 Ala. 430, 161 So. 794. While. remarriage of wife does not ipso facto annul alimony granted by divorce decree, it affords a reason for doing so. Morgan v. Morgan, supra. Determination of amount of alimony to be paid by the husband must be left to discretion of trial court who had he parties before him. Adams v. Adams, 229 Ala. 589, 159 So. 80; Higgins v. Higgins, 222 Ala. 44, 130 So. 677. Attorney's fees for complainant were properly disallowed. Secondo v. Secondo, 218 Cal. 453, 23 P.2d 752; Johnson v. Gerald, 216 Ala. 581, 113 So. 447, 59 A.L.R. 348; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602.
The court in its decree of modification acted within its jurisdiction. Gabbert v. Gabbert, 217 Ala. 599, 117 So. 214; Epps v. Epps, 218 Ala. 667, 120 So. 150; Adams v. Adams, 229 Ala. 588, 159 So. 80.
The record presents no settlement of properties that is within the influence of Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911.
The facts on which the court acted in the modification order are within the influence of Morgan v. Morgan, 211 Ala. 7, 99 So. 185.
The disallowance of attorneys' fees to the wife in resisting this motion was without error. This case is within the influence of Norrell v. Norrell, Ala.Sup., 1 So.2d 654 ; and Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825, 829. In the latter case is the observation that in divorce and alimony cases, the right to an attorney's fee is an incident to alimony or separate maintenance, "when the right to a decree fixing alimony or maintenance is exhausted, so is the right to an attorney's fee."
Ante, p. 170.
We have examined the record and are of the opinion and hold that the decree of modification is due to be and it is affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.