Summary
In Stern v. Stern, 50 So.2d 119 (Fla. 1951), the court refused to require the husband to pay his wife's attorneys' fees but awarded her attorneys a fee of $1,500.00 to be secured by a lien on her undivided half interest in the parties home.
Summary of this case from Conroy v. ConroyOpinion
January 16, 1951. Rehearing Denied February 5, 1951.
Appeal from the Circuit Court, Palm Beach County, Joseph S. White, J.
Jordan Johnson, West Palm Beach, for appellant.
Johnson Johnson, West Palm Beach, for appellee.
Appellant, as plaintiff sued appellee for divorce on the ground of extreme cruelty. Defendant countered with an answer and a counterclaim in which he denied the material allegations of plaintiff's bill, prayed that he be divorced from the plaintiff and that their home, deed to which is in the name of plaintiff and defendant jointly, be decreed to be the property of defendant and not held by them as an estate by the entireties as the deed would show. On final hearing a divorce was granted defendant and the home was decreed to be an estate by the entireties held henceforth by the parties hereto as tenants in common.
At the outset plaintiff was granted a temporary solicitor's fee of $100 and temporary alimony of $50 per week. In the final decree she was denied alimony, suit money and solicitor's fees, but her solicitors were decreed to be entitled to a fee of $1500. The chancellor retained jurisdiction of the cause to award plaintiff's solicitors a lien on her undivided half interest in and to the home and furnishings to secure their fees. This was to be done after deducting any amounts paid her as temporary solicitors' fees. This appeal is from the decree so entered.
We find no error in that part of the final decree granting defendant a divorce. On this point the record as a whole presents an ugly picture. Plaintiff was emotionally immature, maladjusted, over suspicious and unable to adapt herself to a marital environment, defendant was shrewd, intolerant and supersensitive. His claim for divorce amounted to little more than recrimination against the plaintiff. It was his third matrimonial venture and her fifth. This of itself was a red light that might have put both on inquiry if it is rational to assume that inquiry be made under such circumstances. Plaintiff contends that defendant should not be granted a divorce because his claim for it is supported solely by his evidence. It is a fact that the primary evidence supporting the contention of both parties is the evidence of the parties themselves, but we think that there was sufficient corroborating evidence to support the chancellor's decree on this point.
We find no error in the fee awarded plaintiff's solicitors but we fail to find support for that part of the final decree retaining jurisdiction of the cause to "award plaintiff's solicitors a lien upon plaintiff's undivided half interest in and to said real estate for any sums remaining due them on account thereof." There are cases in which an attorney's lien for services may be impressed and enforced in equity, as when his contract so provides or when he collects money and moves promptly to safeguard his lien, but such a lien ordinarily conveys no interest in the rem that may be enforced at law. Nichols v. Kroelinger, Fla., 46 So.2d 722, 723. The rule is that when a man seeks a divorce from his wife and she is without funds, he is required to bear the cost of the litigation including the wife's solicitors' fees. Since the record shows that the plaintiff was without means this case is amenable to that rule. The fact that the parties could not readjust themselves to it and make a success of the marriage venture does not relieve the man of the wife's claim for the expenses of the litigation.
It follows that the judgment appealed from is affirmed in so far as it grants the divorce but as to that part in which it attempts to impress a lien for attorneys' fees, it is reversed.
Affirmed in part, reversed in part.
SEBRING, C.J., and TERRELL, THOMAS and HOBSON, JJ., concur.