Opinion
4 Div. 742.
January 18, 1934.
Appeal from the Circuit Court, Pike County; Hon. W. L. Parks, Judge.
Grant Orme, of Troy, for petitioner.
There is no statute providing for a review of an interlocutory decree fixing temporary alimony, pendente lite, attorney's fees, and support and maintenance of a minor child. Jackson v. Jackson, 211 Ala. 277, 100 So. 332; Rogers v. Rogers, 215 Ala. 259, 110 So. 140, 141; Ex parte Wood, 215 Ala. 280, 110 Sc. 409. And mandamus is efficacious for the purpose of review. Ex parte Jackson, 212 Ala. 496, 103 So. 558; Ex parte Hilton, 213 Ala. 573, 105 So. 647; Ex parte Edwards, 183 Ala. 659, 62 So. 775; Brady v. Brady, 144 Ala. 414, 39 So. 237; Ex parte Eubank, 206 Ala. 8, 89 So. 656. It is a recognized rule that the finding of a register will not be disturbed unless clearly erroneous, and that exceptions thereto should be duly reserved. Jones v. Moore, 215 Ala. 579, 112 So. 207; Ex parte Apperson, 217 Ala. 176, 115 So. 226; Chancery Rule 93. Our statute does not specifically provide for allowance of attorney's fees, the propriety of allowing same being governed by general principles of law, according to which such allowance must depend upon good faith of the proceeding, probability of success, etc. Bulke v. Bulke, 173 Ala. 138, 55 So. 490; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; Ortman v. Ortman, 203 Ala. 167, 82 So. 417; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935; Ex parte Apperson, 217 Ala. 176, 115 So. 226; Birmingham v. L. N. R. Co., 216 Ala. 178, 112 So. 472; Nashville, C. St. L. R. Co. v. Crosby, 194 Ala. 338, 70 So. 7. To constitute cruelty, the acts, conduct, or causes must be grave and weighty. There must be actual violence, attended with danger to life or death. 19 C. J. 44; Code 1923, § 7409. The burden of showing good faith and proving the charge of cruelty was not discharged by complainant. Jones v. Jones, 189 Ala. 286, 66 So. 4; Apperson v. Apperson, 217 Ala. 157, 115 So. 229.
Wilkerson Brannen, of Troy, for respondent.
Temporary alimony is a matter of right, the amount largely discretionary. Jeter v. Jeter, 36 Ala. 403; Code 1923, § 7417; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935; Ex parte Apperson, 217 Ala. 176, 115 So. 226; Ex parte Watson, 220 Ala. 409, 125 So. 669; Rast v. Rast, 113 Ala. 319, 21 So. 34; Lawrence v. Lawrence, 141 Ala. 356, 37 So. 379; 1 R. C. L. 898, 910. The allowance of attorney's fees is discretionary. Ex parte Watson, supra; Ex parte State ex rel. Boyette, 211 Ala. 129, 99 So. 853; Ex parte Williams, 223 Ala. 221, 135 So. 172. A register's findings based on examination of witnesses orally is presumed to be correct. Bidwell v. Johnson, 195 Ala. 547, 70 So. 685; Ex parte Wood, 215 Ala. 280, 110 So. 409; Ex parte Eubank, 206 Ala. 8, 89 So. 656; Ex parte Cairns, 209 Ala. 358, 96 So. 246; Curtis v. Curtis, 180 Ala. 70, 60 So. 165. In proceedings involving the custody and care of infants, the paramount consideration is the welfare of the infant. Hayes v. Hayes, 192 Ala. 280, 68 So. 351. Any conduct on the part of the husband which furnishes reasonable apprehension that the continuance of cohabitation would be attended with bodily harm to the wife is legal cruelty. Carr v. Carr, 171 Ala. 600, 55 So. 96; 9 R. C. L. 334.
The bill by the wife sought absolute divorce. Temporary alimony for the wife and child and reasonable attorney's fees were likewise sought and allowed pursuant to the report of the register after due reference to that end and oral testimony taken.
The answer of the circuit judge in response to the rule nisi is not controverted by the evidence, and the truth or sufficiency thereof put in issue, and will be taken as true. Ex parte Apperson, 217 Ala. 176, 115 So. 226. The facts are before us and are so considered.
Pending suit for divorce, the court must make allowance for the support of the wife out of the husband's estate, suitable to that estate and condition in life of the parties (section 7417, Code; Ex parte Williams, 223 Ala. 221, 135 So. 172); temporary alimony to be allowed as a matter of right, and attorney's fees as a matter of discretion (Ex parte State ex rel. Tissier, 214 Ala. 219, 106 So. 866; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935; Ex parte Apperson, supra; Ex parte Watson, 220 Ala. 409, 125 So. 669; Ex parte State ex rel. Boyette, 211 Ala. 129, 99 So. 853; Ortman v. Ortman, 203 Ala. 167, 82 So. 417; Higgins v. Higgins, 222 Ala. 44, 130 So. 677; Ex parte Williams, supra; Jeter v. Jeter, 36 Ala. 391, 403).
The allowance of attorney's fees being discretionary, the good faith of the wife is to be considered, and the question of good faith may be reserved for final decree. Ex parte State ex rel. Boyette, supra; Ex parte Williams, supra; Coleman v. Coleman, supra.
A register's report based on the oral examination of witnesses is presumed to be correct. Bidwell v. Johnson, 195 Ala. 547, 70 So. 685. Where the petition for mandamus alleges the amount of alimony and attorney's fees allowed is excessive, the burden of proof as to this is imposed upon the petitioner. The finding of facts made and reported by the register is like unto the verdict of a jury, and will not be disturbed unless clearly wrong. Ex parte Wood, 215 Ala. 280, 110 So. 409; Johnston v. Johnston, 212 Ala. 351, 102 So. 709; Warren v. Lawson, 117 Ala. 339, 23 So. 65; Vaughan v. Smith, 69 Ala. 92; Ex parte Eubank, 206 Ala. 8, 89 So. 656; Ex parte Apperson, 217 Ala. 176, 115 So. 226; Ex parte Cairns, 209 Ala. 358, 96 So. 246.
The answer and the testimony upon the hearing show that petitioner's net worth is more than $15,000 or $20,000. It is not contended or shown that the complainant wife has any independent source of support or income. The answer of respondent in this cause shows the sums awarded were reasonable.
The bill as filed sought the custody of the minor child, and petitioner was charged and required by law with her support; and the court properly ordered petitioner to pay a sufficient sum pending the litigation for her support. Such is the jurisdiction of a court of equity. Bell v. Bell, 214 Ala. 574, 108 So. 375, 45 A.L.R. 935. The child being a daughter of precarious health, prima facie the mother was entitled to her custody and care under the facts averred. A paramount consideration to be given is the well-being of the child, whose custody has been made an important consideration and object of the suit.
We have examined the record and evidence, and find no error in the decree of the trial court, and the petition is therefore denied.
Petition denied.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.