Opinion
Civ. 1983.
October 24, 1979.
Appeal from the Circuit Court, Tuscaloosa County, Claude Harris, Jr., J.
John A. Owens and Barrie Balzli Stokes of Phelps, Owens, Jenkins, Gibson Fowler, Tuscaloosa, for appellant, John R. Spain.
Walter P. Crownover of Crownover Mountain, Tuscaloosa, for appellee.
This is a divorce case. The husband appeals from that portion of the court's decree ordering him to pay $1,100.00 to the wife for payment of her attorney's fee. We affirm.
The wife filed for divorce requesting alimony, child custody and support, and attorney's fee. She also moved for maintenance and support plus attorney's fee pendente lite. The husband was ordered to pay $125.00 every other week as support and maintenance pending the final decree. The husband answered the complaint and denied that the wife was entitled to alimony on constitutional grounds. He stated that the alimony statutes of the state of Alabama were void and unconstitutional and violated rights guaranteed to him under the fourteenth amendment to the United States Constitution.
After a hearing on the merits of the case, the trial court granted the wife a divorce but did not grant her alimony. The wife was also awarded custody of the children and the husband was ordered to pay $150.00 every other week as child support. The court then awarded the wife $1,100.00 for attorney fees.
Both parties to this appeal agree that the primary issue presented to this court is whether the trial court properly awarded attorney fees to the wife.
The husband contends that attorney fees cannot be recovered by the wife because Alabama's alimony statutes have been held unconstitutional by the United States Supreme Court in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), and attorney fees can be awarded only as an incident to a valid alimony statute.
On remand of the Orr case to this court, i.e. Orr v. Orr, Ala.Civ.App., 351 So.2d 904, cert. quashed, Ala., 351 So.2d 906 (1977), rev'd., 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306, aff'd. on remand, Ala.Civ.App., 374 So.2d 895 (1979), cert. den., Ala., 374 So.2d 898 (1979), we corrected the constitutional infirmity that had been declared by the United States Supreme Court by extending alimony benefits to needy husbands as well as wives. Consequently, the trial court's award of attorney fees was made pursuant to valid alimony statutes. Appellant's contention is therefore without merit and the trial court's decree is affirmed.
AFFIRMED.
WRIGHT, P.J., and HOLMES, J., concur.