48 So. 2d 24 | Ala. | 1950
Jessie Tucker filed her bill of complaint in the Circuit Court, in Equity, of Talladega County, Alabama, against Robert Payne Tucker praying for a decree awarding permanent alimony without divorce. Pending a final decree the court, on complainant's motion, ordered a reference to ascertain alimonypendente lite and reasonable compensation for complainant's solicitor. The reference was held before Judge W. D. DeBardelaben, and all of the witnesses were examined orally before him, resulting in a decree denying alimony pendente lite
and solicitor's fee. See, Ex parte Gurganus,
Jessie Tucker then filed in this Court an original petition for the writ of mandamus to review the findings of the trial court and exhibited to the petition a copy of the reference proceedings. In response to a rule nisi issued out of this Court Judge DeBardelaben filed an answer. Some amendments and additional pleadings were filed in this Court, but in our opinion they will not require specific treatment.
The principal question is the propriety of the trial court's action in denying Mrs. Tucker alimony pendente lite and solicitor's fees The use of the writ sought here as an emergency appeal is not denied and is fully sustained by our decisions. State ex rel. Sellers v. Locke, Judge,
Although complainant in her original bill prays for "permanent alimony for her support and maintenance," it is in essence a suit for separate maintenance. As pointed out in Norrell v. Norrell,
Regardless of statute or right to divorce, the court may under general equity powers decree separate maintenance upon sufficient allegation and proof, the right to separate maintenance being independent of the existence of some statutory ground for divorce, Taylor v. Taylor,
In the instant proceeding we are concerned only with suit money which, as we have shown, includes solicitor's fees pending the hearing of the main case for separate maintenance. In Torme v. Torme,
"As we have observed, the decree of March 14, 1945, making allowance to appellant for her maintenance and that of the children and her solicitor's fee in that case did not grant a divorce from bed and board or legal separation, but only made such allowance. The right to such relief is therefore not controlled by sections 36 and 37, Title 34, Code, or other statute. Ex parte Hale,
"When not controlled by statute, sections 30, 36 and 37, Title 34, Code, an allowance for expenses of defending or prosecuting the suit exists in all cases in which it was allowed at common law, and as to which the statute is silent. Ex parte Smith,
"The theory seems to be that maintenance, of which solicitors' fees are a part, can be decreed only while the relation of husband and wife continues. And after a divorce decree, which is not void on collateral attack, the relation is dissolved until that decree is vacated by proper proceeding."
The applicable rule here is, that the allowance of suit money pending a bill for separate maintenance is not a matter of right but rests in the sound discretion of the court. Authorities, supra. And on review, the question is an abuse of discretion.
The evidence in this case, taken orally before the trial judge, has been duly examined and, upon such examination, the court is not clearly satisfied nor satisfied at all, that the trial court has abused his discretion. No public interest requires a discussion of the facts, nor would the parties be benefited thereby. See, Reach v. Reach,
Petition was also filed here for an allowance to petitioner of solicitor's *225
fees for prosecuting this maintenance proceeding. However, since the writ of mandamus is denied on the basis that petitioner was not entitled to suit money in the court below, we would appear inconsistent to allow solicitor's fees for the prosecution of the mandamus proceeding here. See, Brindley v. Brindley,
Writ of mandamus denied: Petition for solicitor's fees in this court denied.
BROWN, LAWSON and SIMPSON, JJ., concur.