Opinion
No. 40866.
October 13, 1958.
1. Separate maintenance — granting of relief sought by wife — proper — divorce — denial of divorce on husband's cross-bill — proper.
In wife's suit for separate maintenance and support on grounds of desertion and habitual cruel and inhuman treatment, wherein husband filed a cross-bill for divorce on ground of cruel and inhuman treatment, issues in case were questions of fact, and it was not error for Chancellor to grant relief sought by wife, deny relief sought by husband, and award wife $150 per month for a period of 12 months, $125 a month thereafter for a period of six months and thereafter the sum of $100 per month.
2. Separate maintenance — attorney's fees — allowance to wife who has separate estate — when — general rule.
As a general rule, if wife has ample means with which to pay her counsel for services rendered in connection with her separate maintenance suit her husband cannot be made to pay; but where husband filed cross-bill for divorce, wife could be allowed an attorney's fee, even though she had $17,500 as well as other personal property of her own.
3. Appeal — divorce — separate maintenance — allowance of attorney's fees largely in discretion of Trial Court — review.
Allowance of attorney's fees is largely discretionary with Trial Court when same should be allowed, and Supreme Court will not undertake to substitute its judgment for that of Chancellor unless it clearly appears that Chancellor abused his discretion or failed to apply correctly equitable principles which governed case.
4. Separate maintenance — liens — Chancellor may impress lien to secure payment of sums ordered to be paid.
In separate maintenance suit, Chancellor had right to impress lien to secure payment of all sums ordered to be paid, but was not required to impress such lien.
Headnotes as approved by Hall, J.
APPEAL from the Chancery Court of Lauderdale County, WILLIAM NEVILLE, Chancellor.
W.A. Temple, T.K. Holyfield, Meridian, for appellant.
I. The amount of separate maintenance allowed to appellee is excessive and unjust, even if any allowance were justified which is denied. Bernard v. Bernard (Miss.), 43 So.2d 727; Gardiner v. Gardiner, 230 Miss. 778, 93 So.2d 638; Miller v. Miller, 173 Miss. 44, 159 So. 112.
II. The Chancery Court erred in allowing appellee any relief prayed for and in allowing any separate maintenance. Ethridge v. Webb, 210 Miss. 729, 50 So.2d 603; Wilson v. Wilson, 198 Miss. 334, 22 So.2d 161; Amis on Divorce and Separation in Mississippi, Sec. 190 p. 252; Bunkley and Morse's Amis, Divorce and Separation in Mississippi, Sec. 7.01 p. 203.
III. The Chancery Court erred in dismissing appellant's cross-bill and should have granted appellant's prayer for divorce.
M.V.B. Miller, Gerald Adams, Meridian, for appellee.
I. The amount of support money allowed appellee by the Trial Court was manifestly unjust and oppressive. Gardiner v. Gardiner, 230 Miss. 778, 93 So.2d 639; Graves v. Graves, 88 Miss. 677, 41 So. 384; Miller v. Miller, 173 Miss. 44, 159 So. 112; Pierce v. Pierce (Miss.), 38 So. 46; Thames v. Thames, 233 Miss. 24, 100 So.2d 870.
II. The Trial Court erred in refusing to decree to appellee one-half of the fund in joint bank account of the parties hereto deposited in the First National Bank in Meridian, Mississippi.
III. The Trial Court erred in holding a Chancery Court in Mississippi is without authority to adjust and decree a wife her equity, interest, property right or part in property in a separate maintenance suit between appellee and appellant. Chrismond v. Chrismond, 213 Miss. 189, 52 So.2d 626; Duvall v. Duvall, 224 Miss. 546, 80 So.2d 753; Shearin v. Coleman, 201 Miss. 193, 28 So.2d 842; Sec. 5205, Code 1942; 17 Am. Jur. 746.
IV. The Trial Court erred in disallowing appellee an attorneys fee. Castleberry v. Castleberry, 214 Miss. 94, 58 So.2d 69; Hibner v. Hibner, 217 Miss. 611, 64 So.2d 756; Kincaid v. Kincaid, 207 Miss. 692, 43 So.2d 108; Lindsey v. Lindsey, 219 Miss. 540, 69 So.2d 203; McNeil v. McNeil, 127 Miss. 616, 90 So. 327; Wilson v. Wilson, 202 Miss. 504, 32 So.2d 688.
V. The Trial Court erred in refusing to fix and declare a lien on the real property of appellant described in bill of complaint or other lien to secure payments to appellee by appellant accruing and to accrue under the holding of the Trial Court.
The appellee brought suit against appellant for separate maintenance and support on the grounds of desertion and habitual cruel and inhuman treatment. She did not pray for a divorce. The appellant answered and denied the allegations of the bill and filed a cross bill seeking a divorce on the ground of cruel and inhuman treatment. After hearing the evidence over a period of about three or four days the chancellor entered a decree sustaining the allegations of the original bill and denying the relief sought by the cross bill. From his decree this appeal is prosecuted.
In the decree the chancellor allowed the wife $150 per month for a period of 12 months and $125 a month thereafter for a period of 6 months and thereafter the sum of $100 per month. The husband claims on this appeal that the amount of separate maintenance allowed is excessive and unjust even if any allowance were justified. He contends secondly that the chancery court erred in allowing appellee any of the relief prayed for and in allowing any separate maintenance. His third contention is that the lower court erred in dismissing his cross bill and that his prayer for divorce should have been granted.
(Hn 1) All the findings of the chancellor were amply supported by the evidence, which we deem unnecessary to here detail. We think the issues in this case were questions of fact and that they have been correctly decided and consequently there is no ground for reversal here.
(Hn 2) The record shows that Mrs. Barber has about $17,500 in a bank on savings account as well as some other personal property, and appellant contends that in view of this fact no attorney's fees should be allowed and argues that the chancellor recognized this fact in his opinion in the case and stated that he does not agree with the principle enunciated by this Court to the effect that if the woman has ample means with which to pay her counsel the defendant cannot be made to pay it, and the court then went on to add that this fact has been taken into consideration somewhat in the setting of the amounts of alimony in the periods covered thereby. Appellant argues that indirectly the court allowed an attorney's fee when none should have been allowed.
We think that counsel for appellant and the lower court have overlooked the fact that the appellee filed this suit and was then faced with a cross bill which she had to defend and that the cross bill was of appellant's own making and not hers and although the general rule stated by the chancellor is correct this Court held in the case of Gardiner v. Gardiner, 93 So.2d 638, 641, not yet reported in the State Reports, that the wife was entitled to an allowance of attorney's fees for defending the cross bill. In that case the wife had inherited a substantial amount of property from her mother and also approximately $10,000 from a deceased sister and she was apparently amply able to have hired an attorney out of her own funds and property. She appealed to this Court and the husband cross appealed and we allowed her an attorney's fee on the cross appeal.
(Hn 3) The allowance of attorney's fees is of course largely discretionary with the trial court when the same should be allowed and this Court will not undertake to substitute its judgment for that of the chancellor unless it clearly appears that the chancellor has abused his discretion or has failed to apply correctly the equitable principles which govern in such cases.
(Hn 4) The appellee cross appeals here and among other things contends that the lower court should have awarded a lien upon the appellant's property to secure the payment of the separate maintenance. We think, as was held in the Gardiner case, supra, that the chancellor had a right to impress a lien to secure the payment of all sums ordered to be paid, but we do not think that the chancellor was required to impress such a lien but only that in his discretion he had a right to impress the lien.
For the reasons stated the judgment of the lower court will be affirmed on both the direct and cross appeals.
Affirmed.
Roberds, P.J., and Holmes, Ethridge and Gillespie, JJ., concur.