Opinion
No. 41540.
October 24, 1960.
1. Divorce — alimony — child support — evidence sustained Chancellor's decree.
Evidence sustained decree of Chancellor granting wife divorce and custody of two minor children, and awarding her $125 a month as alimony and $125 a month as support and maintenance for children, and granting her use of home and furniture, but requiring her to pay monthly installment of $75 on notes on house from the monthly award of $250 made to her.
2. Appeal — divorce — attorneys' fees.
Where decree granting wife divorce and custody of two minor children, and allowing wife $200 to apply on her attorneys' fees, was affirmed on husband's direct appeal and on wife's cross appeal, wife's motion for allowance of attorneys' fees in Supreme Court in amount of $100 would be sustained by Supreme Court.
Headnotes as approved by Arrington, J.
ON SUGGESTION OF ERRORNovember 21, 1960 124 So.2d 843
3. Appeal — divorce — attorneys' fees — allowance to wife on appeal — rule — exception to rule.
On appeal by husband, it is practice of Supreme Court to allow wife one-half of fee allowed by Chancery Court for attorneys' fees except where permanent alimony awarded to wife gives her sufficient means to meet obligations of attorneys' fees on appeal.
4. Appeal — divorce — attorneys' fees — motion for attorneys' fees — Rule 16 substantially complied with.
Where husband appealed to Supreme Court and wife filed motion for additional attorneys' fees on appeal stating that Supreme Court's policy was to award attorneys' fees on appeal of one-half of that allowed by trial court and that her counsel on appeal had rendered good and valuable services in her behalf, such motion was substantially equivalent to a brief in support of the motion as required by court rule. Rule 16, Supreme Court Rules.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Hinds County; S.V. ROBERTSON, JR., Chancellor.
Forrest B. Jackson, Jackson, for appellant.
I. An award to appellee of alimony was improper. Griffith's Mississippi Chancery Practice, Secs. 392, 392 note 22.
II. The awards to appellee of alimony and support money were excessive. Blount v. Blount (Miss.), 95 So.2d 545; Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147; Cupit v. Brooks, 223 Miss. 887, 79 So.2d 478; Lowry v. Lowry, 229 Miss. 376, 90 So.2d 852. Scales Scales, Pyles Tucker, Jackson, for appellee.
I. The lower court did not abuse its judicial discretion in allowing the appellee to amend her bill of complaint to include a prayer for alimony. Delta Motor v. Childs, 233 Miss. 125, 101 So.2d 527; Horton v. Horton, 213 Miss. 768, 57 So.2d 723; McGuire v. Busby, 229 Miss. 518, 91 So.2d 284; Sec. 1302, Code 1942.
II. The award of alimony to the appellee is not unjust to the appellant or oppressive. Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147; Cupit v. Brooks, 223 Miss. 887, 79 So.2d 478; Lowry v. Lowry, 229 Miss. 376, 90 So.2d 852; Sec. 2743, Code 1942.
III. On cross-appeal.
Point I. The award of alimony to the appellee was insufficient, unjust to the appellee and oppressive.
Point II. The award of support and maintenance for the children to the appellee is insufficient, unjust to the appellee and oppressive.
Point III. In the absence of a finding that the removal of the children would prejudice the rights or welfare of the children, the Court abused its judicial discretion in prohibiting the appellee from removing the children beyond the jurisdiction of the trial court unless prior application was made to the trial court and permission granted. Shea v. Shea (Cal.), 223 P.2d 32.
APPELLANT IN REPLY.
I. Reply to appellee's Point I. Delta Motors v. Childs, 283 Miss. 125, 101 So.2d 527; Herrin v. Daly, 80 Miss. 340, 31 So. 790; Horton v. Horton, 213 Miss. 768, 57 So.2d 723; McGuire v. Busby, 229 Miss. 518, 91 So.2d 284; 53 Am. Jur., Sec. 146 p. 131; Bunkley Morse's Amis on Divorce and Separation in Mississippi, Secs. 6.05, 6.08, 9.02.
II. Reply to appellee's point 2 on direct appeal and points 1 and 2 on cross-appeal.
III. Reply to appellee's point 3 on cross-appeal.
Collation of authorities: Ackerman v. Ackerman (Mo.), 280 S.W.2d 425; Brake v. Brake (Mo.), 244 S.W.2d 786; Caporale v. Hale, (Neb.), 100 N.W.2d 847; Chase v. Chase, 70 Ill. App. 572; Ex Parte Ellerd (Texas), 158 S.W. 1145; Godbey v. Godbey, 70 Ohio App. 450, 44 N.E.2d 810; McGonigle v. McGonigle, 112 Colo. 569, 151 P.2d 977; Martinec v. Sharapata, 328 Ill. App. 339, 66 N.E.2d 103; Shea v. Shea, 100 Cal.App.2d 60, 223 P.2d 32; Simmons v. Trenter (Kan.), 327 S.W.2d 936; Smith v. Smith, 101 Ill. App. 187; York v. York, 138 Neb. 224, 292 N.W. 385; Sec. 2743, Code 1942; Sec. 213, California Civil Code; 27 C.J.S., Sec. 413 p. 1179; McElroy's Mississippi Evidence, Sec. 12.
On August 7, 1959, the appellee was granted a divorce from the appellant and was awarded the custody of their two minor children. The court awarded the appellee $125 per month as alimony and $125 per month as support and maintenance for the two minor children. The appellee was granted the use of the home and furniture and the decree further provided that the appellee was to pay out of the $250 awarded to her the monthly installment of $75 on the notes on the house; that the appellee was to keep the minor children within the Jurisdiction of the court and was prohibited from removing said children beyond the jurisdiction of the court unless prior application was made to the court and permission granted. Appellee was allowed $200 to apply on her attorneys' fees. From this decree the appellant appeals and the appellee cross-appeals.
(Hn 1) We have carefully considered the evidence in this case and find that the chancellor was amply justified in rendering this decree. (Hn 2) The appellee's motion for the allowance of attorneys' fees in this Court in the amount of $100 is sustained. It follows that since we find no merit in the appeals, the case is affirmed on direct and cross-appeal.
Affirmed on direct and cross-appeal. Motion for allowance of attorneys' fees in amount of $100.00 sustained.
McGehee, C.J., and Kyle, Ethridge and Gillespie, JJ., concur.
ON SUGGESTION OF ERROR
(Hn 3) The suggestion of error argues that it was error to sustain appellee's motion for allowance of attorneys' fees in this Court in the amount of $100. That sum is one-half of the fee allowed by the chancery court, and is in accord with our long-established practice. See Aldridge v. Aldridge, 200 Miss. 874, 27 So.2d 884 (1946). An exception to this rule exists where the permanent alimony awarded to the wife gives her sufficient means to meet the obligation of attorneys' fees on appeal, but we concluded that this case did not fall within that exception. We adhere to that view.
(Hn 4) However, appellant says that since appellee, who made the motion for additional attorneys' fees on appeal, filed no brief in support of it, the motion should have been dismissed. Rule 16 of this Court provides that, if counsel is not present and has no brief filed when the motion is called, it shall be dismissed. Lewis v. Lewis, 203 Miss. 355, 35 So.2d 441 (1948). Lewis is not controlling here, because appellee's motion contained what was in effect a brief in support of it: It stated that the Court's policy was to award attorneys' fees on appeal of one-half of that allowed by the trial court; and counsel for appellee represented her on appeal, and had rendered good and valuable services in her behalf. There really was not much else that movant could say in support of her motion. It was the substantial equivalent, under the peculiar circumstances of this case, of a brief in support of appellee's motion, within Rule 16.
Moreover, the motion was filed on Friday, September 30, appellant answered the same day, and the case was submitted without argument on the following Monday, October 3, both on the merits and on motion. Appellee's brief was entitled "On Behalf of Appellee and Cross-Appellant, and Motion for Additional Attorneys' Fees on Appeal." Appellee fully discussed the facts of the case in this brief. It was pertinent on the issue of whether she should be allowed attorneys' fees on appeal. And in it appellee referred to her motion and the custom of this Court in that respect. Hence we do not think that Lewis is controlling on the motion. The suggestion of error is overruled on both argued points.
Suggestion of error overruled.
McGehee, C.J., and Kyle, Arrington and Gillespie, JJ., concur.