Opinion
No. 32857.
December 6, 1937. Suggestion of Error Overruled January 17, 1938.
1. DIVORCE.
The court which granted divorce decree to wife improperly directed that payment of $200 by husband should be in full settlement of alimony for wife and support for nine-month old child, and three years later, on showing that wife could earn nothing and that child needed medical attention, court properly directed husband, who was remarried, had another child, and was earning about $80 per month, to pay $12 per month for child's support, since a father's duty to support his child is absolute when necessity arises (Code 1930, sections 1421, 1863).
2. STATUTES.
That which is implied in a statute is as much a part thereof as that which is expressed.
3. DIVORCE.
The statute providing that court granting divorce decree may, on petition, change decree and make such new decrees as case may require, contemplates that children should be supported by father, if necessary, and necessarily implies that court may impose on father obligation to pay expenses incident to presentation of petition for support, including attorney's fee, so that a divorced mother, who was unable to support child and prepare petition, was entitled to allowance of attorney's fee for filing and presenting petition (Code 1930, section 1421).
4. DIVORCE.
In proceeding to compel husband to support child whose custody had been awarded wife, where lower court granted award and fixed attorney's fees for the wife at $50, Supreme Court would sustain the action of the trial court and award the wife an additional attorney's fee of $25 for services of attorney on appeal.
APPEAL from chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
Harold Cox, of Jackson, for appellant.
The lower court was and is without authority to award the appellee an attorney's fee for the prosecution of this suit.
Amis, Divorce Separation, sec. 178; Bradford v. Bradford, 31 So. 963, 80 Miss. 467; Robinson v. Robinson, 72 So. 923, 112 Miss. 224.
The decree of the Chancery Court of Hinds County in the divorce cause between the parties, entered on December 21, 1934, is res judicata as to the liability of appellant for the support of the child and precludes any additional award therefor.
31 C.J., page 1166, sec. 355; Memphis Stone Gravel Co. v. Archer, 82 So. 315, 120 Miss. 453; Cocks v. Simmons, 57 Miss. 183; McLemore v. Chicago, St. L. N.O.R.R. Co., 58 Miss. 514; Gusdofer v. Gundy, 16 So. 432, 72 Miss. 312; Burkitt v. Burkitt, 81 Miss. 593, 33 So. 417; Malone v. Malone, 131 So. 870, 159 Miss. 138; Maxey v. Maxey, 120 So. 179, 152 Miss. 454; Warner v. Warner, 167 So. 615, 175 Miss. 476; Yarborough v. Yarborough, 290 U.S. 202; Kettenring v. Kettenring, 163 N.E. 43; Section 1421, Code of 1930.
When alimony is commuted to a lump sum, to be paid presently, as in this case, in fixing the amount the court takes into consideration the possible remarriage of the wife to a husband able to support her, and any and all other contingencies which might arise. It is a settlement between the husband and the wife as to the interest of the latter in his property, and as to the extent of the husband's duty to contribute to her maintenance and support. The decree is final after the term at which it is rendered.
Guess v. Smith, 100 Miss. 457, 56 So. 166; Williams v. Williams, 127 Miss. 627, 90 So. 330; Clark v. Clark, 133 Miss. 744, 98 So. 157; Miller v. Miller, 159 So. 112, 173 Miss. 44; Armstrong v. Armstrong, 33 Miss. 279; 9 R.C.L., page 459, sec. 270.
It is therefore earnestly submitted that the lower court was without the power or authority in June, 1937, to award the appellee a decree against the appellant for any additional amount for the support of the child, since the appellant had fully discharged his liability in such respect by having paid the lump sum award provided by the decree entered by procurement of the appellee and her counsel on December 21, 1934.
The decree of the court in this cause is not responsive to any dependable evidence, and is based on conjecture and speculation.
Tyson v. Utterback, 122 So. 496, 154 Miss. 381; Holmes v. Holmes, 123 So. 865, 154 Miss. 713; Tarver v. Lindsey, 137 So. 93, 161 Miss. 379.
The court in the final decree entered on December 21, 1934, directed the appellant to pay the appellee a stated amount until the total sum of $200 should be paid in full settlement of all alimony for herself and support money for the child. The appellant was also directed by said decree to pay appellee's attorney's fees. This decree was entered by the procurement of the appellee herself. In her testimony she stated, "My attorney did that. He advised me that it was the best thing to do." It is the appellant's position that this decree became final when no appeal was taken therefrom, and that since the amount awarded the appellee was a lump sum award, that the lower court was without authority to make another and additional award and allowance to the appellee in the same cause after the original final decree had been discharged.
This is not a proceeding between a husband and a wife concerning their matrimonial relations, and a case is not, therefore, presented which this court will recognize as a proper one for the allowance of an attorney's fee.
Robertson Robertson, of Jackson, for appellee.
The Chancery Court had authority to award the appellee a fee for the services of an attorney in that court, and the Supreme Court has authority to grant an additional fee for defending against this appeal.
Newson v. Newson, 146 So. 473.
The decree of the Hinds County Chancery Court in the divorce cause between the parties, entered on December 21, 1934, was not a final determination of the rights of the child of the marriage to support from its father, the appellant herein.
Section 1421, Code of 1930; Worthington v. Worthington, 117 So. 645; Dickey v. Dickey, 58 A.L.R. 639; Kearney v. Kearney, 174 So. 59; Garland v. Garland, 50 Miss. 694; Dickerson v. Brown, 49 Miss. 357; 1 Bishop on Marriage Divorce, 272.
The duty of support on the part of the father is a continuing one which is not terminated on the granting of a divorce, or awarding the custody to the mother.
Amis on Divorce and Separation, page 317; Lee v. Lee, 135 Miss. 865, 101 So. 345; Lewis v. Lewis, 163 P. 42, 174 Cal. 336; Boggs v. Boggs, 114 A. 474, 138 Md. 422; Hertzen v. Hertzen, 208 P. 580, 104 Or. 423; Spencer v. Spencer, 97 Minn. 56, 105 N.W. 483, 114 A.S.R. 695.
We are not contending in this case now that the divorce decree awarding Mrs. Walters, the appellee, alimony in the sum of $200 is not res adjudicata as to her, but we are contending that such decree is not res adjudicata as to the duty of the father to support his minor child, who was one year old at the time of the divorce decree, until the child is twenty-one years of age.
Mayer v. Mayer, 154 Mich. 386, 117 N.W. 890, 19 L. R.A. (N.S.) 245, 129 Am. St. Rep. 477; Rowe v. Rowe, 76 Or. 491, 149 P. 553; Levine v. Levine, 95 Or. 94, 187 P. 609.
The decree of the Chancery Court here appealed from is responsive to the dependable evidence introduced, and is based on the ability of the appellant to support his child, after that court had heard and considered the evidence and had observed both the appellant and appellee and all of their witnesses on the stand.
The court below properly allowed a fee to appellee's solicitors, but only for their services in that court. The Mississippi Supreme Court has always allowed reasonable fees for services of solicitors in this court in this class of cases.
Hall v. Hall, 27 So. 636, 77 Miss. 741; Everett v. Everett, 81 So. 417, 119 Miss. 627; Brown v. Brown, 85 So. 180, 123 Miss. 125; Watts v. Smylie, 116 Miss. 12, 76 So. 684; Boyett v. Boyett, 119 So. 299, 152 Miss. 201; Kearney v. Kearney, 174 So. 59.
Supporting the contention that the court below properly allowed a fee to the solicitors for the appellee in the case at bar for their services in that court are the following cases:
Chambers v. Chambers, 75 Neb. 850, 106 N.W. 993; Blake v. Blake, 70 Wis. 238, 35 N.W. 551; Roberts v. Roberts, 135 Minn. 397, L.R.A. 1917C, 1140, 161 N.W. 148; Worthington v. Worthington, 111 So. 224, 215 Ala. 447; Baker v. Baker, 114 So. 661, 94 Fla. 1001.
It is generally held that appellate courts have jurisdiction to order an allowance of alimony pending an appeal and counsel fees for the wife's defense. This is done to enable the wife to maintain her rights on the appeal as an incidental power in the court where the cause is pending.
Franklin v. Franklin, 109 Miss. 163, 68 So. 74; Smithson case, 113 Miss. 644, 74 So. 609; Parker v. Parker, 71 Miss. 164, 14 So. 459.
In December, 1934, the appellant and the appellee were husband and wife, having one child, a daughter about nine months old. On December 24th of that year the chancery court of Hinds county, on the complaint of the wife, the appellee here, dissolved the bonds of matrimony existing between her and her husband, granted her the custody of the child, and directed "that said L.E. Walters, pay to the said Mrs. Pearl Cheek Walters the total sum of $200.00 in full settlement of all alimony for herself and support money for said child, Dorothy Carroll Walters, and that said $200.00 be paid as follows: $15.00 immediately upon the signing of this decree, and $15.00 per month, payable upon the 21st of each month hereafter until the balance of $185.00 is paid in full." This support fund was thereafter paid the appellee by the appellant.
In January, 1937, the appellee filed a petition in the court below, which granted the decree of divorce, setting forth in substance that the appellant had made no further contributions to the support of the child; that when the decree was rendered the appellee was earning a small amount of money herself but is now, and has been for some time, unable to earn any money whatever, and that she is without means for the support of the child, which, in addition to food, lodging, and clothing, needs certain specifically set forth medical attention. The appellant, by an answer, denied his further liability under the decree of divorce for the support of the child, and further denied that any facts existed which would warrant a change being made in the decree relative thereto, under section 1421, Code of 1930. That section is as follows:
"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."
The evidence supports the allegations of the petition and discloses that the child is now being supported by the appellee's sister and brother-in-law. It further discloses that the appellant has married again and that he and his present wife have one child, both of whom he is supporting. His income probably does not exceed $80 a month. The court below granted the prayer of the petition and directed the appellant to pay the appellee "$12.00 per month, beginning this date and until the further orders of this court, for the support and maintenance of said Dorothy Carroll Walters," the child of the appellant and the appellee. The decree further directed the appellant to pay the appellee's attorneys a fee of $50 for filing her petition and presenting it to the court.
After the case reached this court, and before it was submitted on its merits, the appellee filed a petition for an allowance of an attorney's fee in this court. This petition was retained by the court until the case should be heard on its merits.
The duty of a father to support his child when the necessity therefor arises is absolute, and the court below was without the power to relieve the appellant therefrom by its decree rendered in December, 1934. Moreover, the amount with which the appellant was there charged for the support of the child is manifestly insufficient to care for it except for a limited time, which has long since passed. The decisions of this court to the effect that, where alimony is awarded the wife in a lump sum, no further alimony for her support can thereafter be awarded to the wife, are not in point here, and the appellant makes no contention that the appellee is an unsuitable person to be entrusted with the custody of the child and with the disbursement of the money allowed for its support. Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 7 A.L.R. 1259, is not in point here, for the reason that the proceeding here is under section 1421, Code of 1930, and such was not the case there. We have not overlooked section 1863, Code of 1930, which imposes liability on both the father and mother for the "care, nurture, welfare and education" of their children; but it does not appear that its mother is now able to contribute any money whatever to the support of this child.
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 present a petition for its support by the father, and, as here, is without the means to employ an attorney so to do, the child would suffer, the very thing the statute was designed to prevent. In order for the court to carry out the purpose of the statute as to the support of a child, it must be presented with a petition therefor, and unless in cases such as the one here the court may award compensation to an attorney therefor, the purpose of the statute would be defeated. Its necessary implication, therefore, is that, in order to obtain the presentation to it of such a petition, the court may impose on the father an obligation to pay the expenses incident thereto, a necessary part of which is an attorney's fee. "That which is implied in the statute is as much a part of it as that which is expressed." 59 C.J. 973; 2 Sutherland, Statutory Construction (2 Ed.), section 500; United States v. Babbit, 1 Black. 55, 17 L.Ed. 94; Peets v. Martin, 135 Miss. 720, 101 So. 78. Authorities from other jurisdictions are cited in support of the allowance of these fees, but we have not found it necessary to resort thereto.
The court below committed no error either in charging the appellant with this support fund or with the payment of a fee to the attorney who presented the petition therefor, consequently, its decree will be affirmed. It follows also that the motion for the allowance of an attorney's fee in this court should be, and it will be, sustained, and the amount thereof will be fixed in accordance with our usual, though not invariable, custom in similar cases, at $25, one-half of the amount allowed in the court below.
So ordered.