Summary
In White v. Bowen, 223 Ga. 94, 98 (153 S.E.2d 706) (1967), this court held: "The judgment for attorney's fees is in favor of the wife, or will be construed as being in her favor, and such judgment cannot be enforced by the attorney in his own name by writ of fieri facias (Code § 39-104), or by attachment for contempt."
Summary of this case from Leonard v. LeonardOpinion
23773.
ARGUED NOVEMBER 15, 1966.
DECIDED FEBRUARY 9, 1967. REHEARING DENIED FEBRUARY 23, 1967.
Alimony; attorney's fees. Fulton Superior Court. Before Judge Shaw.
Houston White, for appellant.
Charles H. Edwards, H. A. Stephens, Jr., Claude E. Hambrick, for appellees.
The allowance of attorney's fees in an action for divorce and alimony as a part of the expenses of litigation ( Code § 30-202) is for the benefit of the wife to enable her to contest the issues between herself and her husband, and the provision of the alimony judgment awarding such attorney's fees can not be enforced by the attorney in his own name by attachment for contempt or by writ of fieri facias.
ARGUED NOVEMBER 15, 1966 — DECIDED FEBRUARY 9, 1967 — REHEARING DENIED FEBRUARY 23, 1967.
In the final judgment and decree in the divorce action between Evelyn H. Bowen and Robert Blair Bowen, Sr., a divorce was granted to the wife and provision was made for permanent alimony. The decree contained the following paragraph: "The plaintiff is hereby awarded as part of the permanent alimony, for the purpose of prosecuting this action and defending the case brought against her, shall receive the sum of $2,000.00 as attorney's fees, said amount to be paid at the rate of $200.00 per month and said payments to begin on the 1st day of March, 1966, and shall continue until the full amount of $2,000.00 is paid."
Houston White, alleging that he was attorney of record representing Mrs. Bowen throughout the case, filed a motion to adjudge Robert Blair Bowen, Sr., in contempt of court for failure to pay the installments of attorney's fees due under the decree, and also prayed that fieri facias issue for the payments in arrears. He alleged that Mrs. Bowen had died testate since the final decree in the case. He named as respondents Robert Blair Bowen, Sr., and Anita Bowen Wishon, as executrix of the estate of Mrs. Evelyn H. Bowen. By amendment to his motion he alleged that by written agreement Mrs. Bowen agreed to pay him $5,000 for his services and such "additional fees as the court may allow," that Mrs. Bowen was under a duty as trustee to recover the unpaid balance of $1,800 as attorney's fees for his use, and that her executrix succeeds to the duties of her mother to prosecute the rule for contempt and to have fieri facias issue against Robert Blair Bowen, Sr. He prayed that the judgment in the rule for contempt be styled Anita Bowen Wishon, as executrix of the estate of Mrs. Evelyn H. Bowen, deceased, for the use of Houston White, and that Robert Blair Bowen, Sr., be adjudged in contempt.
After a hearing the trial judge denied the motion to hold Robert Blair Bowen, Sr., in contempt of court, and to issue fieri facias against him. Houston White filed an appeal from this order.
While many legal questions are made by this appeal, the controlling issue is whether an attorney can enforce the provisions of an alimony decree for attorney's fees by attachment for contempt or by writ of fieri facias against the husband of the attorney's deceased client.
Code § 30-204 provides: "The order allowing alimony shall be subject to revision by the court at any time, and may be enforced either by writ of fieri facias or by attachment for contempt against the person of the husband..." None of the cases cited by the appellant holds that an attorney in his own name can enforce the provisions of an alimony decree.
In Weaver v. Weaver, 33 Ga. 172, it was held: "Where alimony has been granted to the wife, and fees ordered to be paid her counsel pending a libel for divorce, and the libel is subsequently dismissed without trial, the order for alimony will be rescinded, but not that for the fees of counsel." No ruling as to the enforcement of this order was involved in the case.
In Roberts v. Roberts, 115 Ga. 259 ( 41 S.E. 616, 90 ASR 108), it was held that a judge would be disqualified who was related within the prohibited degree to counsel for the wife, where attorney's fees were sought in connection with an alimony case. In that case the question of whether counsel might enforce in his own name a judgment for attorney's fees was discussed but not decided.
In Bennett v. Bennett, 157 Ga. 848 ( 122 S.E. 616), this court affirmed the judgment entered by the trial judge against the husband for attorney's fees in a divorce and alimony case, where the parties had reached a settlement of the alimony issue without consent of counsel. No question of the enforcement of this judgment was involved.
The appellant cites Thomas v. Smith, 185 Ga. 243 ( 194 SE 502), as the only physical precedent in this state his research has disclosed where an attorney in his own name ruled a husband in contempt for failure to pay an award of attorney's fees in a divorce and alimony case. In the Thomas case the parties had reconciled since the award of attorney's fees. This court quoted from Walden v. Walden, 171 Ga. 444 (2) ( 155 S.E. 919), as follows: "A judgment that the attorney for the petitioner in a suit for alimony should recover a stated sum as attorney's fees will be construed as a judgment that the plaintiff recover as attorney's fees the amount stated." It was then held that the subsequent voluntary cohabitation of the parties rendered void a judgment for temporary alimony and attorney's fees, and that the judge did not err in vacating the judgment awarding attorney's fees, and in refusing to adjudge the husband in contempt for failure to pay such fees.
In numerous cases this court has held that a judgment that the attorney for the plaintiff in an alimony case should recover a stated sum as attorney's fees will be construed as a judgment that the plaintiff recover as attorney's fees the amount stated. Sellers v. Sellers, 175 Ga. 47 (3) ( 164 S.E. 769); Blackburn v. Blackburn, 201 Ga. 793, 794 ( 41 S.E.2d 519); Coleman v. Coleman, 205 Ga. 92, 93 ( 52 S.E.2d 438).
In Levine v. Seley, 217 Ga. 384 (2) ( 123 S.E.2d 1), this court quoted Code § 30-208, which provides that alimony judgments in favor of children "may be enforced as those in favor of the wife exclusively," and then stated: "Accordingly, it is a well-settled rule of law in this State that the right to enforce a judgment for alimony either for the wife alone, or for herself and her minor children ... when she has custody of them is vested exclusively in the mother. The same rule applies to the enforcement of an award for attorney fees in an alimony case." (Emphasis supplied.)
The italicized statement in Levine v. Seley, supra, was not necessary to a decision in that case, but we think it is a correct statement of the law of Georgia. In Harrison v. Harrison, 208 Ga. 70 (2) ( 65 S.E.2d 173), it was held: "In alimony, or divorce and alimony proceedings, attorney's fees in favor of the wife against the husband are not allowed as such, but as an intrinsic part of temporary alimony awarded for the purpose of enabling the wife to contest the issues between herself and her husband." The judgment for attorney's fees is in favor of the wife, or will be construed as being in her favor, and such judgment can not be enforced by her attorney in his own name by writ of fieri facias ( Code § 39-104) or by attachment for contempt.
Since the appellant was not entitled to the relief sought, it is unnecessary to decide questions made by the enumeration of errors concerning the allowance in evidence of his statement at the divorce and alimony trial that he had been paid his fees in the case by the wife, and that any amount awarded as attorney's fees would be given by him to the wife.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., and Almand, P. J., who dissent. Nichols, J., concurs specially.
I dissent from the ruling that the attorney for the wife, who is awarded permanent alimony with a specific amount as attorney's fees, cannot institute in his own name contempt proceedings against the husband for failing to comply with the decree as to the payment of attorney's fees. In my opinion the ultimate beneficiary of the award of attorney's fees is the attorney who procured the award for the wife, and he therefore has such an interest in the award that he can institute contempt proceedings in his own name against the husband for failure to comply with the award. "Where a party is authorized to initiate contempt proceedings based on violation of an order, he must meet two requirements: (1) he must have a legally recognized interest in the order, for instance, as the party for whose benefit the judgment or order was made, or as a successor in interest to such party, and (2) he must be aggrieved, that is, injured, by the alleged violation." 17 AmJur2d 74, Contempt, § 81. "A creditor prima facie entitled to participate in the fund so withheld is a proper party to move an attachment against the defaulting receiver; and in the absence of any such motion, the judge presiding, on information derived from any source, should cause proper inquiry to be made as to the facts, and, if found to be true, take proper steps to compel the return of the money." Tindall v. Westcott, 113 Ga. 1114 ( 39 S.E. 450). See Orr v. Orr, 141 Fla. 112 (192 S 466), which held that the attorneys who had represented the wife in her divorce action could maintain contempt proceedings against the husband for his failure to comply with the order requiring him to pay attorneys' fees. See also Annotation, 61 ALR2d 1083, "Who may institute civil contempt proceedings."