Summary
finding wife entitled to one-half attorney's fees on appeal, despite reversal of divorce decree in favor of husband
Summary of this case from Lacoste v. LacosteOpinion
No. 39785.
November 28, 1955.
1. Appeal — divorce denied — evidence — insufficient to entitle either spouse to divorce — support and maintenance denied — costs.
In divorce action by husband on ground of habitual cruel and inhuman treatment wherein wife filed cross-bill charging similar ground and Trial Court denied divorce to husband but granted divorce to wife and awarded her permanent alimony, under state of record, Supreme Court held that evidence was insufficient to entitle either spouse to a decree for divorce on ground charged, that wife was not entitled to be supported by the payment of permanent alimony while living separate and apart from husband, but was entitled to attorney's fees in Trial Court and on appeal, and that reversal of cause by husband carried with it the costs to be assessed against wife.
Headnote as approved by McGehee, C.J.
APPEAL from the Chancery Court of Jackson County; H.P. HEIDELBERG, Chancellor.
Donald W. Cumbest, Pascagoula, for appellant.
I. The testimony of appellant, which is corroborated by three witnesses who were unimpeachable, entitled appellant to a divorce.
II. Appellee's cross-bill cannot support a decree in her favor in that the abuse, if any, was not persistently in the presence of third persons, and appellee's cross-bill does not specifically allege facts relied on to sustain her charge of habitually cruel and inhuman treatment as required under the laws of the State of Mississippi. Stringer v. Stringer, 209 Miss. 328, 46 So.2d 791; Amis on Divorce and Separation in Miss., Secs. 115-17 pp. 161-62.
III. In the absence of testimony showing the financial condition of the appellant and the necessitous circumstances of the appellee, a decree awarding attorneys' fees and alimony was erroneous in that appellee in the alternative failed to ask and pray for separate maintenance provided she was not entitled to a divorce. Lakey v. Lakey, 67 So.2d 711.
Merle F. Palmer, Pascagoula, for appellee.
I. In view of the appellant's own testimony about the collusion involved in the filing of his original bill of complaint, the Chancellor could not under the law of the State of Mississippi have awarded the appellant a divorce even if his allegations were true. It is a settled principle of law in this State that the Court is without power to grant a divorce where there is collusion.
II. The evidence offered by the appellant and his witnesses entirely failed to make out a case of habitual cruel and inhuman treatment within the meaning of the statute, even if said testimony was taken by the Court as being true.
III. The Court had ample testimony before it as to the earning capacity and ability of the appellant.
IV. The decisions of this Court are legion that the findings of fact by the Chancellor will not be changed on appeal if substantially supported by the evidence.
V. The appellee under her cross-bill made out a case of cruel and inhuman treatment.
(Hn 1) A bill for divorce was filed by the appellant C.B. Santos, a native of Brazil, who had moved to Pascagoula, Mississippi, where he was duly and legally married to the appellee Lenora Santos on or about January 15, 1948. The parties were separated on or about August 17, 1953, and the ground on which the appellant sought the divorce was the alleged habitually cruel and inhuman treatment of him by his wife. The trial court correctly held that the evidence offered by the husband was insufficient to sustain his allegations of habitually cruel and inhuman treatment of him by his wife. At least we are not justified in holding that he was manifestly wrong in his finding in that behalf.
The wife filed an answer and cross bill, the answer denying the allegations of the original bill of complaint and the cross bill containing allegations of habitually cruel and inhuman treatment of the wife by the husband. She was the only witness who testified to sustain the allegations of her cross bill and there is nothing in the testimony of the husband and his witnesses to corroborate her testimony. Therefore, under the decisions of this Court in the cases of Anderson v. Anderson, 190 Miss. 508, 200 So. 729, and Chambers v. Chambers, 213 Miss. 71, 56 So.2d 33, and the authorities therein cited, the wife was not entitled to a divorce on her uncorroborated testimony in support of her cross bill.
Therefore, neither of the parties were entitled to a divorce under the testimony offered in the light of the decisions of this Court in the cases of Humber v. Humber, 109 Miss. 216, 68 So. 161; Russell v. Russell, 157 Miss. 425, 128 So. 270; Price v. Price, 181 Miss. 539, 179 So. 855; Stringer v. Stringer, 209 Miss. 326, 46 So.2d 791; and Chambers v. Chambers, supra. Nevertheless, she was granted a divorce by the trial court, and was awarded permanent alimony in the sum of $25.00 per month beginning the first day of January, 1954. Under the state of this record the wife was not only not entitled to a divorce but was not entitled to be supported by the payment of permanent alimony while living separate and apart from her husband. The decree also allowed the wife the sum of $100.00 as an attorney's fee for defending the divorce suit and for his legal services in the trial of the case. The decree should be affirmed wherein it denied a divorce to the husband, reversed wherein it granted a divorce and alimony to the wife, and should be affirmed wherein it allowed the attorney's fee to the wife for services rendered in the trial court.
The motion for an attorney's fee to the wife in this Court to pay for the services of an attorney in defending the decree of the lower court appealed from by the husband should be sustained, and the amount of the fee here is fixed at the sum of $50.00, it being the customary practice of this Court to allow on appeal one-half of the fee allowed in the trial court, where such allowance is deemed to be reasonable. The cause will, therefore, be affirmed in part and reversed in part, that is to say in the particulars hereinbefore mentioned, and the motion for the attorney's fee here is sustained in the amount of $50.00.
There was no motion or hearing had in the trial court for alimony pendente lite, nor was there any allowance made therefor in the trial court, and the only motion before this Court is that for the allowance of an attorney's fee on this appeal. Since the husband is obtaining a reversal of the decree allowing his wife a divorce and alimony, the cost of this appeal, other than the attorney's fee allowed her, is to be assessed against her.
Affirmed in part, reversed in part and decree here for the appellant on the cross bill, and for the wife as to an attorney's fee in this Court.
Hall, Lee, Kyle and Holmes, JJ., concur.