194 Ky. 812 | Ky. Ct. App. | 1922
Opinion op the Court by
Sustaining motion to require appellee to pay counsel fees for appellant for services of counsel in this court.
From the affidavits of appellant, it appears, that she has no property of any kind nor means, wherewith to employ counsel; that she has no attorney and has had none, since the appeal was filed; that because of her inability to pay for the services of an attorney at law, she
“In actions for alimony and divorce the husband shall pay the costs of each party, unless it shall be made to appear in the action the wife is in fault and has ample estate to pay same.”
This statute has been construed many times to mean that in actions for alimony and divorce, the husband must pay all the costs, unless the wife is both at fault and has ample estate to pay same. Though she is at fault, the husband must pay the costs, unless she is the owner of property, which will enable her to pay them. Alderson v. Alderson, 113 Ky. 830; Willis v. Willis, 168 Ky. 35; Turner v. Turner, 23 K. L. R. 370; Steele v. Steele, 119 Ky. 466; McMakin v. McMakin, 27 K. L. R. 1211; Hoffman v. Hoffman, 190 Ky. 13; Walter v. Walter, 190 Ky. 49; Witt v. Witt, 188 Ky. 45.
It has, furthermore, been continuously held, that a reasonable sum to pay for necessary legal services, for the wife, in actions involving alimony and divorce is a proper item of costs, and the husband is required to pay it for the wife, under the same circumstances, under which he is required to pay other costs created by her. Nunn v. Page, 134 Ky. 698; Schneider v. Schneider, 23 K. L. R. 1154; Elliott v. Elliott, 138 Ky. 309; Williams v. Monroe, 18 B. M. 514; Ballard v. Caperton, 2 Met. 412. The reasons ordinarily assigned for the above principle is, that the husband is usually the holder of the purse strings, and the customs of society and the respective duties of husband and wife are such that the former usually has all the property, and if she was not protected by requiring him to pay her costs, that in actions for divorce and alimony, she would be at his mercy, and hence he is required to furnish her funds to maintain her causes of action or defense, in controversies, which arise between them touching such matters, if she has not ample estate from which to pay'them herself.
In the instant case, whether the wife is or is not at fault is the question to be determined upon the appeal, but, be that as it may, it appears, that she is destitute of property or money, and for that reason is unable to secure competent counsel, and without such does not have
The allowance of counsel fees to the wife is but an incident of the jurisdiction to hear and determine appeals concerning divorce and alimony, and not an original jurisdiction. If the wife is denied the means of properly presenting her cause or defense in this court, her right of appeal would be ineffectual. In Prine v. Prine, 36 Fla. 676, the court dealing with this subject said: “We do not believe it would be under such circumstances an exercise of original jurisdiction for us upon a proper showing to