Fites v. Fites, 62 Ind. App. 396

Fites v. Fites

62 Ind. App. 396 | Ind. Ct. App. | 1916

Ibach, C. J.

In this case the court granted a divorce to appellant on the grounds “alleged in his complaint.” The grounds pleaded are “adultery with one Mike MeClanahan and divers other men”, habitual drunkenness and cruel treatment. On-granting the divorce the court decreed appellee $350 alimony, and the further sum of $175 for attorneys’ fees. Appellant is here contending that the trial court erred in overruling his motion to modify the judgment on the ground that alimony can not be decreed where a divorce is granted to the husband because of the adulterous conduct of the wife.

1. While authority is given the trial court generally to award alimony (§1083 Burns 1914, §1045 R. S. 1881), yet in almost every instance where the wife has yielded her person to promiscuous intercourse with other men, and the divorce has been granted to the husband on that ground,the higher courts have set aside an award of alimony to her, if such was granted by the trial court. The case which clearly lays down this rule is Spaulding v. Spaulding (1892), 133 Ind. 122, 32 N. E. 224, 36 Am. St. 534. See also Drollinger v. Drollinger (1914), 57 Ind. App. 115, 106 N. E. 428, and cases there cited. The courts, however, have recognized an exception to this general rule, where the wife’s industry has aided in accumulating the *398property possessed by the husband, and it is also held to be contrary to public policy to leave a wife destitute, even though adulterous. Conner v. Conner (1867), 29 Ind. 48; Fivecoat v. Fivecoat (1871), 82 Iowa 198.

While the evidence is not before us, appellant in his motion to modify admits that appellee’s evidence tended to show that she had contributed to her husband’s property. From this, together with the presumption which we are permitted to indulge in support of the judgment, we are justified in holding that this case forms an exception to the general rule and the court did not err in adjudging the alimony to appellee.

2. Appellant also insists that it was error for the court to award judgment against him for appellee’s attorneys’ fees. The power to award fees for services rendered by attorneys for the wife, in connection with divorce cases, is not a power inherent in the common law, but comes to the trial court solely by virtue of the statute and, before any order with respect thereto will be upheld, it must appear that the provisions of .the statute have been followed. Section 1080Burns 1914, §1042 R. S. 1881, authorizes the court “pending a petition for divorce” to make such orders “relative to the expense of such suit as will insure to the wife an efficient preparation for her case,” etc., and “on decreeing a divorce in favor of the wife or refusing one on the application of the husband,” the court may require the husband to pay the reasonable expenses of the wife in the prosecution or defense of her action. In the case at bar, no order of the court of the character contemplated by the foregoing section of the statute was made until the final decree was entered. The decree was not in favor of appellee, the wife, but was for *399appellant, the husband; so that, while the statute requires the payment of money to the wife for attorneys’ fees and expenses during the pendency of the suit, when such order as is contemplated by the statute is made, it does not authorize such a decree as a part of the final judgment in this case. McCullough v. Robinson (1851), 2 Ind. 630; Davis v. Davis (1895), 141 Ind. 367, 40 N. E. 803; McCue v. McCue (1897), 149 Ind. 466, 49 N. E. 382; Newman v. Newman (1873), 69 Ill. 167; Lacey v. Lacey (1895), 108 Cal. 45, 40 Pac. 1056; Wilde v. Wilde (1866), 2 Nev. 306; Johnson v. Johnson (1896), 57 Kan. 343, 46 Pac. 700.

The court erred in allowing attorneys’ fees to appellee and for this error the judgment is reversed, with directions to the trial court to modify . the judgment in accordance with this opinion.

Note. — Reported in 112 N. E. 39. Wife’s right to alimony on the granting of an absolute divorce to husband, 20 L. R. A. (N. S.) 421; 30 L. R. A. (N. S.) 73; 20 Ann. Cas. 24; Ann. Cas. 1915C 1252; 14 Cyc 767, 102 Am. St. 700. Liability of husband for services of wife, 24 L. R. A. 629.