Opinion
No. 33345.
October 10, 1938.
1. HUSBAND AND WIFE.
On husband's appeal from decree granting wife separate maintenance and attorney's fee, wife was entitled to legal services of attorney to assist her in defending decree and to an allowance of alimony pending appeal to enable her to maintain her rights when the case was heard on the merits.
2. HUSBAND AND WIFE.
On motion of wife for allowance of alimony pending husband's appeal from decree awarding wife separate maintenance and attorney's fee and for counsel fees in the Supreme Court, the court was concerned solely with question as to necessitous circumstances of wife and obligation of husband to pay suit money and attorney's fee before being allowed to proceed with appeal.
3. HUSBAND AND WIFE.
On husband's appeal from decree granting wife separate maintenance in amount of $50 per month and $100 attorney's fee, Supreme Court would allow wife alimony of $50 per month pending appeal and attorney's fee of $50 for services of attorney in Supreme Court.
APPEAL from the chancery court of Lauderdale county; HON. A.B. AMIS, SR., Chancellor.
H.W. Davidson and Williamson, Riddell Riddell, all of Meridian, for appellee on petition.
See Section 1420 of the Mississippi Code of 1930 as touching the power of a Chancery Court to require the husband to contribute to the support of wife in urgent and necessitous cases, even in vacation. This power, it seems, to award suit money and support is inherent in a court of chancery and when the case is appealed to the Supreme Court it seems it is incident to the power of the Supreme Court.
Hall v. Hall, 27 So. 636; Everett v. Everett, 80 So. 647, 81 So. 417; 19 C.J., page 209, sec. 507, and page 281, sec. 643 (2).
We respectfully submit that this appellate court has the inherent power to award suit money as per the motion of appellee in this case, including both counsel fees and necessary maintenance for the appellee pending the appeal.
Appellant argues that the purported release settled all claims for support, and attorney's fees. The court below adjudicated the question against appellant, and held that said purported release was obtained improperly from appellee. The determination as to whether the court below decided this issue incorrectly according to law is a question to be determined on the appeal of this case on the merits.
De Armond v. Fine, 111 Miss. 737, 72 So. 145; Jones v. Coker, 53 Miss. 195.
A husband and wife may not enter into an agreement in proceedings already commenced or about to be instituted with respect to alimony, conditioned upon the granting of a divorce or facilitating it, because a contract intended to promote a dissolution of marriage is contrary to public policy.
13 C.J., pages 463, 464. F.K. Ethridge and Gilbert Cameron, all of Meridian, for appellant.
An agreement as to alimony, where provision has been made by the husband for the wife upon his separation from her, either by separation agreement or by voluntary settlement, the wife is not entitled to temporary alimony, at least unless she returns or offers to return what she has received, when that is possible, or shows that the amount provided for in the agreement is not sufficient for her needs.
19 C.J.
There is nothing in the record to show that the appellant had any notice from the appellee to the effect that she did not intend to stand by the previous agreement and contract of release and practically had lulled the appellant into a sense of security and at least prevented the appellant from filing an answer and bringing this contract to the attention of the court, as this conduct of the appellee was tantamount to fraud on the jurisdiction of the court.
Moss v. Moss, 123 Miss. 812; Plummer v. Plummer, 37 Miss. 185; Harper v. Barnett, 16 So. 553; Guardian v. McGehee, 54 Miss. 621.
We most earnestly insist that this contract is a full and complete settlement and discharge of the appellant from all obligations by reason of the marriage and that it served as a defense to the appellant in this present motion and will be so considered by the court on the hearing of the merits of this cause.
9 R.C.L. 528, sec. 347.
The court has before it on this motion certain affidavits of three parties touching the unlawful conduct of the appellee and we particularly call the court's attention to the fact that appellant, so notorious has been the conduct of the appellee, has presented the affidavit of the father of the appellee to this court and we can only add that this situation must be regarded by the parent as one demanding the attention of the court in order that complete and full justice may be done by the parties.
The testimony furnished by these affidavits touching the conduct of the appellee is shown by the record not to have been known to the appellant and constitutes a now known change in the condition of the appellee as from the known conditions obtaining at the time of the rendition of this decree and under the authorities the same is sufficient to cause a discontinuance of the allowance heretofore made by the court when called to the attention of the lower court in the proper procedure; we insist, however, that the appellant is entitled to have that rule applied in this court while an appeal is pending, for an allowance to which exception has been duly noted.
Amis on Divorce and Separation, page 257; Schlom v. Schlom, 149 Miss. 111; 1 R.C.L. 949, sec. 95; 19 C.J. 277, 628; Redmond v. Broadus, 153 Miss. 889, 122 So. 194.
Appellee sued for a divorce and alimony; and asked in the alternative for separate maintenance and an attorney's fee. Process was duly served on the appellant as defendant, but when the case came on to be heard no plea or answer was filed. Upon the proof made, the chancellor granted the alternative relief prayed for by allowing the sum of $50 per month separate maintenance and a $100 attorney's fee. On a later day of the term, the appellant appeared and sought to have the decree vacated and set aside on the ground that he had obtained from appellee a full and complete release, prior to the granting of such decree, from all liability for separate maintenance and attorney's fee. After being fully advised at the hearing on the motion as to the circumstances under which the alleged release was procured, the said motion was overruled, and the allowance for separate maintenance and attorney's fee was made final. Thereupon, appellant prayed for and obtained an appeal to this court with supersedeas.
The case is now before us for hearing on the petition of appellee, supported by affidavits as to her necessitous circumstances and the appellant's ability to pay, seeking an allowance of alimony pending this appeal, and for counsel fees in this Court.
It must be conceded that the appellee is entitled to the legal services of an attorney in this Court to assist her in defending the decree of the court below, as held in the case of Hall v. Hall, 77 Miss. 741, 27 So. 636; Everett v. Everett, 80 So. 647; and she is entitled to an allowance of alimony pending the appeal to enable her to maintain her rights, whatever they may be, when the case is heard on the merits. Numerous affidavits of crimination and recrimination have been filed in this Court on the issue now before us, but we are concerned solely with the question as to the necessitous circumstances of the wife and the obligation of the husband to pay suit money and attorneys fees before being allowed to proceed with his appeal.
In the case of Franklin v. Franklin, 109 Miss. 163, 68 So. 74, the Court said: "It is generally held that appellate courts have jurisdiction to order an allowance of alimony pending an appeal and counsel fees for the wife's defense. This is done to enable the wife to maintain her rights on the appeal and is an incidental power in the court where the cause is pending. 1 R.C.L., sec. 21, p. 882; Lane v. Lane, 26 App. D.C. 235, 6 Ann. Cas. 683; Mosher v. Mosher, 16 N.D. 269, 113 N.W. 99, 12 L.R.A. (N.S.) 820, 125 Am. St. Rep. 654; Hall v. Hall, 77 Miss. 741, 27 So. 636; Duxstad v. Duxstad, 16 Wyo. 396, 94 P. 463, 15 Ann. Cas. 228."
Suffice it to say, a sufficient showing has been made to justify this Court in fixing an allowance of alimony pending the appeal in the sum of $50 per month from and after the rendition of the decree appealed from and until the hearing of the appeal here on its merits, this amount having been allowed by the chancellor before whom the parties were given full opportunity to produce evidence both as to the needs and requirements of the wife and as to the duty and ability of the husband in the premises. The customary allowance here for an attorney's fee is one-half of the sum allowed by the court below for such purpose.
The petition is granted, and the appellee is allowed the sum of $50 per month suit money covering the period pending this appeal, and the sum of $50 as an attorney's fee here, all to be paid to her or her order, or placed with the Clerk of this Court subject to her order within thirty days from the date of this decree, in default of which payment the appellant's appeal will stand dismissed.