The appeal is from a final decree in a divorce action. The wife was granted a divorce on her cross petition. She filed the present appeal and enumerates as error the striking of certain portions of the jury verdict and not including the same in the final decree, the amount of expenses of litigation awarded her and the placing of a requirement in the child custody award that in the event she should move from Baldwin County she must deliver and pick up the children at the husband’s residence in Baldwin County.
1. In
Mote v. Mote,
2. The verdict of the jury awarded alimony to the wife in a specified amount per month and specified property including the family homeplace, its furniture and an automobile, as well as one-half of the stocks and bonds owned by the parties either individually or jointly, and directed that, as a part of the wife’s alimony and the children’s child support, the husband pay all reasonable medical and dental expenses. The verdict as to child support awarded $100 for each child until majority and carried a provision that, should the wife remarry, such sum should be increased to $250 per month per child. Following the above award of alimony and child support the verdict included the following proviso in a separate paragraph: “The plaintiff is to pay the premiums on all insurance policies now in force, including but not limited to those set forth in defendant’s Exhibit 15, all beneficiaries of said policies to remain as they now are, that is, as shown in said exhibit. The proceeds from said policies are to be used for the maintenance, support and education of the children, same to be part of their child support.”
Following the return of the verdict and after the jury had dispersed, the husband filed a written motion to strike the above quoted paragraph of the verdict. The trial court sustained such motion and did not include such item in the final decree, which action is the basis of the next enumeration of error to be considered. The wife contends that Code § 110-111 requires a re-instatement of the paragraph of the verdict stricken while the husband contends that Code § 110-112 authorized the action of the trial court in sustaining his motion to strike. These Code sections read as follows: “A verdict may be amended in mere matter of form after the jury have dispersed; but after it has been received and re *287 corded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise.” Code § 110-111. “If a part of a verdict shall be legal and a part illegal, the court will construe such verdict and order it amended by entering a remittitur as to that part which is illegal, and give judgment for the balance.” Code § 110-112. Each of these Code sections states a well settled and well defined principle of law. The question presented is whether the stricken portion of the verdict is illegal but capable of being separated or whether the judgment striking the same amounted to an illegal amendment of the jury’s verdict.
An examination of the exhibit referred to in the verdict discloses life insurance policies on the lives of the husband and wife as well as each child, some policies owned by the husband and others by the wife. The beneficiaries are shown on various policies to be the wife, the estate of the husband, the estate of the wife, and the husband and wife jointly on the policies issued on the lives of the children. Some policies were shown to have a cash value, others not to have a cash value and as to others this information was not supplied.
Child support is part of alimony
(Code
§ 30-207), and the right to receive alimony ceases upon the death of the husband unless the decree expressly provides to the contrary.
Berry v. Berry,
The word “proceeds” used in the verdict with reference to the life insurance policies, in the absence of anything further, must be construed as meaning the “pay off” in the event the contingency insured against should occur. There could be no “proceeds” in the absence of the death of one of the persons insured. The beneficiaries were directed to remain unchanged. No policy named the children as beneficiaries, and many named the estate of the husband. While the children would remain his heirs they would not be entitled to further “child support” under the alimony decree. Some of the policies on the husband’s life were owned by and named the wife as beneficiary. As to these policies an attempt to grant the “proceeds” to the support of the children would amount to the grant of alimony for “child support” from the estate of the wife. The same result would of necessity be *288 reached on the policies issued on the life of the wife which named her estate as beneficiary. Without considering whether the effect of that part of the verdict stricken also had the effect of requiring the husband to keep in force other insurance (fire, theft, liability, etc.) which was shown by the evidence, that part of the verdict stricken was illegal and properly stricken under the provisions of Code § 110-112, supra.
3. The sole remaining enumeration of error relates to attorney’s fees. The trial court awarded $1,500 while the wife contends that the proper amount of attorney’s fees was $11,364.41 based upon the testimony of her attorneys on the hearing on such issue. As recognized by the wife, except in cases where the husband is unable to pay a fee, or no more than a nominal fee, the allowance of attorney’s fees should be sufficient to insure proper legal representation, and the exercise of a sound legal discretion in applying such principle will not be disturbed.
Curtis v. Curtis,
Judgment affirmed.