Opinion
No. 36608.
November 24, 1947. Suggestion of Error Overruled January 12, 1948.
DIVORCE.
Where divorce decree granted husband was reversed and remanded solely that chancellor might fix allowance to wife for attorney's fees, chancellor's denial of any allowance therefor on theory that since final decree on divorce issue wife had become able to pay fees herself was error, question being whether wife was able to pay while divorce proceedings were in progress.
APPEAL from the chancery court of Warren county. HON. J.L. WILLIAMS, Chancellor.
Vollor, Teller Biedenharn, of Vicksburg, for appellant.
Appellant is most certainly entitled to an allowance of solicitor's fees, and the decision of the learned chancellor below in not allowing solicitor's fees is not supported by the evidence in this case.
Parker v. Parker, 71 Miss. 164, 14 So. 459; Hall v. Hall, 77 Miss. 741, 27 So. 636; Adams v. Mississippi Livestock Sanitary Board (Miss.), 126 So. 204; Moss v. Mississippi Livestock Sanitary Board, 154 Miss. 765, 122 So. 776; Code of 1942, Sec. 2743; 19 C.J. 228.
The appellate court has power to grant alimony and counsel fees.
Hopper v. Hopper, 183 Miss. 621, 183 So. 504; Everett v. Everett, 119 Miss. 627, 81 So. 417, 80 So. 647; Gresham v. Gresham, 198 Miss. 43, 21 So.2d 414; Moss v. Mississippi Livestock Sanitary Board, supra; Annotation, 136 A.L.R. 502.
Brunini, Brunini Everett and R.M. Kelly, all of Vicksburg, for appellee.
The allowance of attorney's fees is a matter vested in the discretion of the chancellor and the Supreme Court will not upset the trial court's finding of fact unless the same is plainly erroneous and contrary to the overwhelming weight of the evidence.
The husband may be required to make an allowance to a wife to cover the reasonable attorney's fees which may necessarily be incurred by her in prosecuting or defending a suit for divorce only where she is financially unable to provide such services for herself.
Miller v. Miller, 173 Miss. 44, 159 So. 112; Parker v. Parker, 71 Miss. 164, 14 So. 459; Hopper v. Hopper, 183 Miss. 621, 183 So. 504.
The allowance of attorney's fees should be limited to the necessities of the case, and a wife is not entitled to any allowance unless she proves her inability to pay counsel.
Amis on Divorce and Separation, p. 233, Sec. 178.
The record is wholly devoid of any evidence upon which a valuation of legal services can be made. Counsel for appellant seems to contend that this Court has the power, in the event it should determine the chancellor erred in refusing attorney's fees, to fix the amount of attorney's fees which the chancellor should have awarded. We have been unable to discover any case in which our Supreme Court has awarded attorney's fees for services in the court below in an amount determined in effect by the testimony of the members of the Supreme Court itself. Such is the award for which appellant seems to contend.
In the previous consideration of this case, see Wilson v. Wilson, 198 Miss. 334, 22 So.2d 161, 23 So.2d 303, the decree of divorce granted to the husband on July 10, 1944, was reversed and the cause was remanded but for no other purpose than that the Chancellor might fix an allowance to the wife to cover attorney's fees earned in the defense of that case. On the hearing on the remand held on November 11, 1946, the Chancellor denied any allowance, apparently on the theory that since the final decree on the divorce issue in the main case the wife had become able to pay the fees herself.
The question is not what and whether the wife has since become able to pay, if anything, but whether she was well able to pay while the proceedings for the divorce were in progress. If she was not able to pay at that time, it became and was the obligation of the husband to do so, and had he done it the payment would not have been subject to a refund had she subsequently become able to make such a refund. And it would not comport with equitable principles to permit a party to turn to his later advantage a failure by him to do earlier what he should have then done.
The record shows by the great weight of the evidence that the wife was unable to pay her attorneys at the time of the divorce proceedings, and it is immaterial whether she is able to do so now. We therefore make no examination from a factual viewpoint into the latter issue.
We pretermit the question whether the fees allowed on the main issue of divorce should include also the fees earned on the issue presented and heard as a result of the remand in Wilson v. Wilson, supra, that being a question which can be better debated and determined in the trial court when it has before it what we have above said on the main issue.
Reversed and remanded.