219 Miss. 540 | Miss. | 1954
The appellant, A. P. Lindsey, and the appellee, Mrs. Jewel Noblin Lindsey, were formerly husband and wife. On June 8, 1943, 'the appellant was granted an uncontested divorce from the appellee. The court awarded the custody of the two minor children to the mother; and allowed the sum of $150 per month as support and maintenance for the appellee and her two minor children, and other relief which is not necessary to mention herein.
On December 30, 1949, the appellant filed a petition for modification of the 1943 decree, in which he asked that he be relieved of the payment of the sum previously awarded for the support of his former wife and children due to the fact that one of the children had become of age and he was paying all the expenses of the other, a minor
On September 11, 1952, the appellee herein filed her petition for modification of the 1950 decree, in which she asked for past due installments of alimony provided by the 1950 decree for her support and maintenance, for an increase therein, and for attorney’s fees. On October 22, 1952, the appellee filed an amendment to her petition on account of illness suffered subsequent to the filing of the original petition, in which she prayed for additional relief. She alleged that on the advice of her physician, she was confined to the Baptist Hospital for observation and treatment; that she had been advised that she would have to have constant medical care and treatment over a long period of time and due to her illness, she was forced to incur additional expenses in the amount of $161.84.
The appellant answered, and admitted that he was in arrears in alimony payments and admitted that certain deductions had been made, but denied that there was any material change in circumstances since the modified decree of February 6, 1950.
According to the testimony of the appellee, she is over 50 years of age and has no property other than an undivided one-half interest in the home which she occupies, her children owning the other one-half interest therein; that her income never exceeds $60 per month, which is derived from the rental of rooms in the home. The doctor testified that the appellee is suffering from arthritis, heart trouble, and other serious complications, which
After hearing the evidence, the court, in its opinion, found that there had been many changes in the circumstances; that the petitioner had become ill and had incurred considerable medical expenses, and that from the evidence before the court, she would have additional doctors’ bills and medical expenses out of the ordinary for some months to come; that the financial situation of the appellant had not changed materially since the modified decree was entered on February 6, 1950. The chancellor relieved the appellant from making any payments on the home, which had been required by the former decree. Based upon these changed conditions, the court entered a decree in part as follows:
“The respondent, A. P. Lindsey, shall pay immediately to the petitioner, Mrs. Jewel Noblin Lindsey, the sum of Five Hundred Dollars ($500.00), as a lump sum settlement for all sums that may be due her under the terms and provisions of said former decrees, and for application on her medical bills and other debts. The respondent also shall pay immediately to the petitioner the sum of One Hundred and Fifty Dollars ($150.00), for attorneys’ fees in this matter * * *. The respondent, A. P. Lindsey, shall pay to Mrs. Jewel Noblin Lindsey, on the 1st day of January, 1953, and on the first day of each month thereafter, until further orders of this court, the sum of One Hundred Dollars ($100.00) for her support and maintenance as a monthly allowance. * * * The court expressly retains jurisdiction of this cause for the purpose of making such further orders and decrees herein as circumstances and conditions may later warrant. ” From this decree the appellant appeals and the appellee cross-appeals. The appellee waives cross-appeal in view of the appellant’s sole assignment of error.
Sec. 2743, Mississippi Code of 1942, provides: “When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody, and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife, or any allowance to be made to her, and may, if need be, require sureties for the payment of the sum so allowed; and the court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.”
In Amis, Divorce and Separation, Sec. 201, p. 268, it is said: “The only marital right that ever survives the wreck of an absolute divorce, is the right of the wife, in a proper case, to demand that the husband continue to perform his legal marital duty to support her. Code 1390, Section 1423 (Sec. 2743, Code of 1942).”
In the case of Lee v. Lee, 182 Miss. 684, 181 So. 912, the Court said: “Section 1421 provides, among other things, for the allowance of alimony to the wife, and that the court may afterwards, on petition of the husband, change the decree and from time to time make such new decree as the case may require. Under this section no alimony decree is ever a final judgment, it is always open to change.”
This Court, in the case of Walters v. Walters, 180 Miss. 268, 177 So. 507, held that this statute authorized attorneys’ fees to a divorced wife in a suit involving support money for a child after a final decree of divorce. “This brings us to the allowance to the appellee of an attorney’s fee in the court below and her request for a similar allowance in this court. Section 1421, Code of 1930, does not expressly provide for such a fee, but it does by necessary implication. It provides that ‘the court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require.’ It contemplates that the children shall be supported by the father if necessary, and the change in the former decree here requested is for the benefit of the child and not of its mother. If, as here, the mother is unable to support the child and cannot, as here herself prepare or
We see no reason why the construction of this statute as held in the above case should not be applied in a proper case where the wife, due to changed conditions, seeks a modification of the decree, just as it does when she seeks to modify the decree for the support of her minor children, or resists a petition for modification of the decree, whether on behalf of herself or her minor children. The granting of the attorney’s fee under the facts of this case was justified.
The Court, in the case of Castleberry v. Castleberry, 214 Miss. 94, 58 So. 2d 67, in a case similar to the case at bar, and what was said there is equally applicable here, said: “We think this a proper case for allowance of such fees. The proof is undisputed that she had no means by which she could pay her attorney; that she had not paid him anything. Evidently her counsel undertook representation of her on the assumption the court would allow compensation for his services; otherwise, Mrs. Castle-berry would have been without the services of an attor
The appellee filed a motion for an allowance of attorney’s fees in this court, which was passed until the case was heard on its merits. In accordance with the rule followed by this Court, the motion for attorney’s fees will be sustained and allowed in the amount of $75, being one-half of the amount allowed in the court below.
Affirmed.