Opinion
No. 32490.
July 1, 1947. Rehearing Denied September 23, 1947.
(Syllabus.)
1. HUSBAND AND WIFE — Judgment for monthly payments upon order granting separate maintenance need not be calculated in definite amount.
A judgment against the husband for monthly payments upon the granting of an order of separate maintenance need not be calculated in a definite total amount.
2. SAME — Award of $150 per month to wife as separate maintenance not unreasonable in light of circumstances.
In awarding separate maintenance to the wife, it is proper for the court to take into consideration the financial circumstances of the parties, the ability of the husband to contribute to the support of his wife, and her needs thereafter taking into consideration her separate income. Under the circumstances of this case, the award of $150 a month to the wife as separate maintenance is not unreasonable.
3. SAME — Allowance for attorneys' fees reduced as excessive.
Record examined, and held, that the attorneys fee award is excessive and the order therefor is modified.
Appeal from District Court, Creek County; C.O. Beaver, Judge.
Action by Sandy Fox against Harrietta Wiley, now Fox, for divorce. Judgment for defendant on her cross-petition for separate maintenance and attorneys' fees, and plaintiff appeals. Affirmed as modified.
Speakman Speakman and Moraul Bosonetto, all of Sapulpa, for plaintiff in error.
Milsten, Milsten, Johnston Morehead, of Tulsa, for defendant in error.
Action by Sandy Fox against Harrietta Fox for divorce. Judgment for defendant, and plaintiff appeals.
Plaintiff filed his petition in the district court of Creek county seeking a divorce from the defendant on the grounds of gross neglect of duty and abandonment. Defendant answered by general denial and by cross-petition sought a divorce from plaintiff on the ground of cruel and inhuman treatment rendering her condition as his wife intolerable. Plaintiff replied to this answer and cross-petition by general denial. Subsequently defendant filed an amended answer and cross-petition in which she abandoned her prayer for divorce, prayed that plaintiff be denied a divorce and that she be granted separate maintenance and attorneys' fees. There were a number of witnesses testifying on each side upon the trial and upon the conclusion thereof the court rendered judgment denying a divorce to the plaintiff, awarding separate maintenance in the sum of $150 a month to defendant and $5,000 as her attorneys' fees. Upon the hearing of the motion for new trial the court made a further order requiring the plaintiff to pay to defendant's attorneys the sum of $1,000 for representing her in this court. The parties will be herein referred to as plaintiff and defendant as they appeared in the trial court.
For reversal of the judgment plaintiff presents five propositions in his brief, the first three of which are based upon the general contention that the evidence is insufficient to warrant the judgment rendered.
There is sufficient testimony disclosed in the record, if believed by the trial court, to sustain the judgment denying a divorce to the plaintiff and awarding separate maintenance to defendant. Therefore, upon the question of the sufficiency of the evidence to support the judgment the contentions of plaintiff must be denied.
Plaintiff's fourth and fifth propositions in his brief relate to the allowance of attorneys' fees in the case based upon the contention that the order for separate maintenance is not a final order but merely temporary in its nature and that the allowance of $5,000 on the trial of the case and $1,000 as a fee for the presentation of this appeal are excessive. It is conceded in defendant's brief that the order for separate maintenance is a temporary order. This being true, the only question raised by the last two propositions is the alleged excessiveness of the attorneys' fees awarded. Testimony of two expert witnesses upon the trial fixing a reasonable fee for services rendered in this character of action, taking into consideration the wealth of the plaintiff, ranged from $4,000 to $5,000. Neither witness knew at the time he testified that an additional $1,000 would be asked for representing the defendant in this court and their testimony did not take this fact into consideration. Separate maintenance, being an order for temporary relief, may be terminated at any time by a reconciliation of the parties, by a divorce or by death. It makes no final adjudication of the rights of the parties.
Viewing the record as a whole, we are of the opinion that plaintiff's contention of excessiveness in the allowance of attorneys' fees in this case has merit. The fee for representing the defendant in both courts is reduced to $1,500. As thus modified the order and judgment of the trial court are affirmed.