Ex Parte Phillips

10 Citing cases

  1. Kelley v. Kelley

    271 Ala. 683 (Ala. 1961)   Cited 3 times

    De Soto Coal, Mining Development Co. v. Hill, 188 Ala. 667, 65 So. 988; Marcum v. Marcum, 260 Ala. 197, 69 So.2d 670. Appellant's petition for allowances and attorney's fee was erroneously stricken. Code 1940, Tit. 34, §§ 30, 22(1); Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866; Sims Ch.Pl. Pr., § 678; Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591; Equity Rule 56, Code, Tit. 7, App.; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Fuqua v. Fuqua, 268 Ala. 127, 104 So.2d 925. Upon application Supreme Court may award solicitor's fee for services of wife's attorneys on appeal. Mathison v. Mathison, 267 Ala. 101, 104, 100 So.2d 11. Douglas C. Martinson and Cloud Berry, Huntsville, for appellee.

  2. Ex Parte Lewis

    53 So. 2d 328 (Ala. 1951)   Cited 4 times

    Demurrer to the bill is not a denial of the allegations. Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591; 27 C.J.S., Divorce, § 208, p. 900. Alimony pendente lite is not a matter of right but one within the sound discretion of the trial judge.

  3. Ex Parte Gurganus

    37 So. 2d 591 (Ala. 1948)   Cited 22 times
    In Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591, we held that the "court has the inherent power to hear evidence in all proceedings in the equity court. Often matters, not involving the principal equities involved, are referred to the register for a reference but this is for the convenience of the court and in order to facilitate the progress of the cause but not because the court has no right to hear the evidence."

    The court was without authority to set the case down for hearing orally before the court on question of temporary alimony and solicitor's fee and right of occupancy of the lands. Code 1940, Tit. 34, § 30; Mancil v. Mancil, 240 Ala. 404, 199 So. 810. Wife guilty of marital misconduct forfeits alimony pendente lite. Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Ex parte Austin, 245 Ala. 22, 15 So.2d 710, 712. To entitle wife to suit money and alimony pendente lite a prima facie case must be shown in her behalf.

  4. Davis v. Davis

    72 So. 2d 852 (Ala. 1954)   Cited 5 times

    Relief sought by the cross-bill could be granted on the original bill and answer. Code 1940, Tit. 34, §§ 30-32; Ex parte Bragg, 241 Ala. 214, 2 So.2d 393; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Chafin v. Chafin, 254 Ala. 36, 47 So.2d 202; Wood v. Amos, 236 Ala. 477, 183 So. 639; Latimer v. Milford, 241 Ala. 147, 1 So.2d 649. Former decree of custody referred to in bill and demurrer to cross-bill, and admitted in respondent's answer, the trial court took judicial notice thereof, but appellate court cannot do so without it being certified in the record. Crosland v. First Nat. Bank, 233 Ala. 432, 172 So. 255.

  5. Holley v. Holley

    58 So. 2d 783 (Ala. 1952)   Cited 1 times

    Such a denial is insufficient and amounts to an admission. Prestridge v. Wallace, 155 Ala. 540, 46 So. 970; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611; Penney v. McCulloch, 134 Ala. 580, 33 So. 665; Gamble v. C. Aultman, 125 Ala. 372, 28 So. 30. J. B. Atkinson, Clanton, for appellee.

  6. Ex Parte Tranum

    50 So. 2d 447 (Ala. 1951)   Cited 5 times

    An allowance of alimony pendente lite and solicitor's fees grows out of the relationship of husband and wife, the legal obligation of the husband to support and maintain the wife, which continues so long as they remain husband and wife, unless forfeited by the misconduct of the wife, or special circumstances relieve the husband of such obligation. Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611. Here the alimony pendente lite and solicitor's fees were sought on the interposition by the wife of answer and cross bill and no question was raised as to the good faith of the defense or the probability of success.

  7. Steiner v. Steiner

    254 Ala. 260 (Ala. 1950)   Cited 56 times
    In Steiner v. Steiner, 254 Ala. 260, 48 So.2d 184 (1950), Mr. Steiner argued that Mrs. Steiner, as the owner of an automobile, various stocks, jewelry, insurance, and other financial assets, could support herself using those assets and, thus, that her separate estate was not “insufficient for [her] maintenance” within the meaning of a predecessor statute to § 30–2–51(a).

    If the wife has a separate estate of her own, and it is sufficient for her maintenance, she is not entitled to an award of permanent alimony. Code 1940, Tit. 34, § 31; Morgan v. Morgan, 203 Ala. 516, 84 So. 754; Gibson v. Gibson, 203 Ala. 466, 83 So. 478; Higgins v. Higgins, 222 Ala. 44, 130 So. 677; 17 Am.Jur. 467; 27 C.J.S., Divorce, § 233, page 959; 19 C.J. 258; Keezer, Mar. Div. (3d Ed.) 712; Brady v. Brady, 144 Ala. 414, 39 So. 237; Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611. Solicitor's fees are regarded as a part of the wife's temporary alimony, allowed as such, and as being necessary for maintenance of her suit. The allowance is made to the wife as a part of her alimony, and not to or for the benefit of her solicitors. Jeter v. Jeter, 36 Ala. 391; Johnson v. Gerald, 216 Ala. 581, 113 So. 447; Mancil v. Mancil, 240 Ala. 404, 199 So. 810; Ex parte Austin, 245 Ala. 22, 15 So.2d 710; Ex parte Taylor, 251 Ala. 387, 37 So.2d 656, 35 A.L.R. 1101.

  8. Campbell v. Campbell

    41 So. 2d 185 (Ala. 1949)   Cited 32 times
    In Campbell v. Campbell, 252 Ala. 487, 41 So.2d 185, where it appears that the wife lived with the husband after he allegedly threatened to drown her in order to command her obedience to his request to sign a deed, there was only one threat (denied by the husband).

    Murray v. Murray, 238 Ala. 158, 189 So. 877; Ray v. Ray, 245 Ala. 591, 18 So.2d 273; Bailey v. Bailey, 237 Ala. 525, 187 So. 453; Pitchford v. Pitchford, 222 Ala. 612, 133 So. 718; Folmar v. Folmar, 69 Ala. 84; Wood v. Wood, 80 Ala. 254. Condonation is the willing continuance of co-habitation as man and wife and is a defense to a divorce charging cruelty. Farmer v. Farmer, 86 Ala. 322, 5 So. 434; Brown v. Brown, 219 Ala. 104, 121 So. 386. A prima facie case must be shown on wife's behalf to entitle her to temporary alimony and allowance for solicitor's fees. Ex parte Apperson, 217 Ala. 176, 115 So. 226; Mancil v. Mancil, 240 Ala. 404, 199 So. 810; Ex parte Phillips, 247 Ala. 94, 22 So.2d 611. Award of alimony, both temporary and permanent, and solicitor's fees is based upon husband's ability to pay. Ex parte Whitehead, 179 Ala. 652, 60 So. 924; Sills v. Sills, 246 Ala. 165, 19 So.2d 521; State ex rel. Sellers v. Locke, 208 Ala. 169, 93 So. 876; Ex parte Harris, 228 Ala. 88, 152 So. 449; Phillips v. Phillips, 221 Ala. 455, 129 So. 3; Jones v. Jones, 95 Ala. 443, 11 So. 11, 18 L.R.A. 95; Folda v. Folda, 174 Ala. 286, 56 So. 533.

  9. Thompson v. Thompson

    337 So. 2d 1 (Ala. Civ. App. 1976)   Cited 7 times

    There is no error here. Alimony pendente lite is based on the legal obligation of the husband to support and maintain the wife and thus depends on the relationship of husband and wife. Ex parte Tranum, 255 Ala. 143, 50 So.2d 447 (1951); Ex parte Phillips, 247 Ala. 94, 22 So.2d 611 (1945). A decree of divorce a vinculo immediately puts an end to all duties and obligations necessarily dependent upon the continuance of that relationship. Ex parte Thornton, 272 Ala. 4, 127 So.2d 598 (1961).

  10. Hendrix v. Hendrix

    320 So. 2d 684 (Ala. Civ. App. 1975)   Cited 9 times

    Leo v. Leo, 280 Ala. 9, 189 So.2d 558; Sides v. Sides, 284 Ala. 39, 221 So.2d 677; Moore v. Moore, 259 Ala. 326, 66 So.2d 447. Although trial court has much statutory discretion as to alimony and property settlement in divorce proceedings, such discretion is judicial and not arbitrary, and is subject to review. Sides v. Sides, 284 Ala. 39, 221 So.2d 677; Exparte Phillips, 247 Ala. 94, 22 So.2d 611. Judgments must not be predicated on conjecture. Broadway v. Bolar, 33 Ala. App. 57, 29 So.2d 687; Goodwyn v. Union Springs Guano Co., 228 Ala. 173, 153 So. 246; Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665. Camp, Williams Spurrier, Huntsville, for appellee.