Opinion
4 Div. 448.
January 16, 1930.
Appeal from Twentieth Judicial Circuit, Hon. H. A. Pearce, Judge.
O. S. Lewis, of Dothan, and Carmichael Tiller, of Geneva, for appellant.
Mandamus is the proper remedy. Ex parte Cairns, 209 Ala. 358, 96 So. 246. The allowance of alimony to the wife pendente lite is a matter of right, and must be such allowance as is suitable to the estate of the husband and the condition in life of the parties. Code 1923, § 7417. Attorney's fee is regarded as a part of the temporary alimony necessary for the maintenance of her suit. Johnson v. Johnson, 195 Ala. 641, 71 So. 415; Rast v. Rast, 113 Ala. 319, 21 So. 34; McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602. The finding of the register will be treated as the verdict of a jury. Chancery Rule 88, 4 Code, 1923, p. 935; Jones v. White, 112 Ala. 449, 20 So. 527; O'Kelley v. Clark, 184 Ala. 395, 63 So. 948.
W. O. Mulkey and E. C. Boswell, both of Geneva, for appellee.
Alimony of this nature is purely an incident to the suit and the amount is not to be determined by the value of the estate of the husband. Benton v. Benton, 214 Ala. 321, 107 So. 827; Ex parte Whitehead, 179 Ala. 652, 60 So. 924. The allowance of counsel fees is not a matter of right, but depends upon the good faith of the proceedings, probability of success, etc. Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935. Mandamus to an inferior court to show cause will not issue unless a prima facie case of mistake, misconduct, or omission is made out. The decree of the court in this case cannot be controlled or changed in this proceeding. Post Master Gen'l v. Trigg, 11 Pet. 173, 9 L.Ed. 676; Merrill on Mandamus, 326; Ex parte Taylor, 14 How. 3, 14 L.Ed. 302.
Petitioner is complainant in a bill for divorce against her husband, and by this mandamus proceeding seeks a review of the chancellor's decree in that cause fixing alimony pendente lite and solicitor's fees. That she has pursued the proper remedy for such review is not questioned. Ex parte Cairns, 209 Ala. 358, 96 So. 246; Ex parte Eubank, 206 Ala. 8, 89 So. 656.
Following the interposition of demurrer by respondent, the original petition was amended and the record perfected, and that the demurrer refiled to the amended petition is not well taken is quite clear and needs no discussion.
By virtue of our statute (section 7417, Code 1923), allowance to the wife of temporary alimony or support pending the divorce suit is a matter of right. Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; Brindley v. Brindley, 121 Ala. 429, 25 So. 751. It has also been long the practice to allow solicitor's fees to the wife as an aid in the maintenance of her suit; such allowance being regarded as somewhat in the nature of temporary alimony. McEvoy v. McEvoy, 214 Ala. 112, 106 So. 602; Johnson v. Johnson, 195 Ala. 641, 71 So. 415; Rast v. Rast, 113 Ala. 319, 21 So. 34. As our statute, however, makes no allowance for attorney's fees, it is a matter governed by general principles, and influenced by the good faith of the proceedings and probability of success. Ex parte Boyette, 211 Ala. 129, 99 So. 853; Bell v. Bell, supra.
The chancellor in the instant case awarded temporary alimony and also attorney's fee for the wife, thus evidently concluding that sufficient good faith of the proceedings had been prima facie established to justify the latter allowance. We find ourselves in accord with the court below in sustaining defendant's exceptions to the report of the register upon the theory that the amount therein stated for temporary alimony and solicitor's fees was excessive. We recognize that the amount to be allowed is a matter resting largely in the discretion of the trial court (Rast v. Rast, supra), but a careful review of the evidence by the court in consultation is persuasive that the allowance both for temporary alimony and solicitor's fee was too greatly reduced. A discussion of the evidence would serve no useful purpose, and we rest content with a statement of the conclusion reached.
We are of the opinion that, all the circumstances considered, an allowance to the wife of $150 per month is just and proper, and that the decree should be corrected in this respect. As to counsel fees, we think an allowance of $250 at the time will suffice; any further or other allowance to await further progress of the cause, where the labor and skill involved as well as the result of the litigation may properly be considered in determining any further allowance, or, if so, the proper amount thereof.
In the particulars indicated, the decretal order here reviewed should be modified, and the conclusion results in granting the prayer of the petition.
Mandamus awarded.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.