Durham v. Durham

Hill, J.

Mrs. Nodie Durham filed her petition against her husband, for permanent alimony, alleging that on account of his cruel treatment she was forced to separate herself from him and to further decline to live with him as his wife; and that they were living in a bona fide state of separation. She prayed for temporary and permanent alimony and attorney’s fees. The defendant filed his answer and denied all the allegations of cruelty charged against him. The jury, to which the case was submitted on September 16, 1924, returned a verdict for the plaintiff for $500 as permanent alimony. On September 17, 1924, plaintiffs attorneys asked the court for an allowance of attorney’s fees for their services rendered to the plaintiff. The defendant’s counsel objected to the court hearing the question of attorney’s fees at that time, for the reason that the court lost jurisdiction of the question of temporary alimony and attorney’s fees for the plaintiff when the verdict of the jury was rendered. The court overruled the objections; to which ruling the defendant excepted. Defendant’s counsel then stated to the court that he was not ready for the hearing; that the defendant was not in court; that he was entitled to five days’ notice on the hearing for temporary alimony and attorney’s fees; and that such notice had not been given, nor had any notice of a hearing been given to the defendant. The court overruled these objections, and heard testimony as to the value of the services of plaintiff’s attorneys in representing her in the suit; to which ruling the defendant excepted. The hearing then proceeded; and evidence was submitted, which was objected to on the ground that the case was terminated by the verdict of the jury, and no case was then pending to authorize the court to hear an application for attorney’s fees, which objection was overruled, and the defendant excepted. On September 19, 1924, the court entered judgment for $300 attorney’s fees in favor of the plaintiff against the defendant; to which judgment the ■ defendant excepted.

This is the second time the present case has been before this court. Durham v. Durham, 156 Ga. 454 (119 S. E. 702). The case was sent back for another hearing, 'because the court erred in failing.to give, in the course of its instructions, a definition of cruelty or cruel treatment as those terms are defined in the law. When the case was returned for trial the jury returned a verdict for the plaintiff against the defendant for the sum of $500 as permanent alimony. On the following day application was made to the court by counsel representing the plaintiff, for' attorney’s fees, which was allowed by the court, and the same was entered in the decree along with the amount awarded by the jury as-permanent alimony. One of the questions to be determined is whether the judgment of the court allowing the attorney’s fees after the verdict of the jury, but which was made a part of the same decree allowing permanent alimony, was too late, as insisted by the plaintiff in error. In Wise v. Wise, 157 Ga. 814 (3) (supra), this court held: “Counsel fees for representing the wife in an application for permanent alimony are allowable by the judge as expenses of litigation, as temporary alimony is allowed. Civil Code of 1910, §§ 2976, 2979; Knox v. Knox, 139 Ga. 480 (77 S. E. 628). This applies whether the application for permanent alimony is made in a suit for permanent alimony alone or in connection with a suit for a divorce. But the order of the judge allowing attorney’s fees in such cases should precede the final verdict. VanDyke v. VanDyke, 125 Ga. 491 (54 S. E. 537). If, upon a final trial for divorce evidence is admitted, without objection, in support of an alleged claim for counsel fees, a new trial will not be granted because the judge submitted the question to the jury (Knox v. Knox, supra); but it does not follow in a divorce suit, where a claim is made for permanent alimony and counsel fees, after final verdict, in which no. counsel fees were awarded, the judge may by order or decree require the defendant to pay counsel fees. This principle is recognized in Phillips v. Phillips, 146 Ga. 61 (91 S. E. 379).” See also Luke v. Luke, 159 Ga. 551 (136 S. E. 374), where the above ruling was followed and approved.

What was said in the Wise case and the Luke case, supra, to the effect that the rule which requires that the order of the judge allowing attorney’s fees should precede the final verdict, whether the application for attorney’s fees is made in a suit for permanent alimony alone or in connection with a suit for divorce, was not necessary to a decision in those cases, so far as it applied to a case where the suit was for permanent alimony alone, for the reason that in neither of those cases was the suit for permanent alimony alone, but they were suits for divorce and verdicts had been rendered in those cases granting a divorce; and therefore, under the ruling in those cases the plaintiff and defendant were no longer man and wife'; the litigation had been ended, and of course in such cases the application for attorney’s fees ought to have preceded the end of the litigation. But in the instant case there was no suit for a divorce, and a verdict for permanent alimony in favor of the plaintiff against the defendant had been rendered, and before the decree was entered for the permanent alimony the plaintiff made her motion for attorney’s fees, which was allowed and included in the decree for permanent alimony, although it was after the rendition of the verdict. In these circumstances we are of the opinion that the present case is distinguishable from the Wise and Luke cases, supra, and the decisions there cited, and therefore that the court below did not err in hearing the application and decreeing, under the facts of,the case, attorney’s fees for the plaintiff against the defendant. Civil Code (1910), §§ 2976, 2979; Knox v. Knox, 139 Ga. 480 (supra); 1 R. C. L. 911, § 59 et cit.

We are also of the opinion that the court did -not err in refusing to continue the hearing of the application for attorney’s fees, under the facts of the case. It is insisted that the defendant'was entitled to three days’ notice of the application for attorney’s fees; but it will be observed, as already pointed out, that the case had been twice tried; in the first case attorney’s fees had been allowed, but a new trial had been granted, and when the case went back for a second hearing the defendant was bound to know that the plaintiff was insisting upon an allowance for attorney’s fees and that that hearing would be before the judge and not before the jury. The motion for continuance was not based upon the ground that the defendant was providentially hindered from being present, and that his attorney, who made the motion, could not safely go to trial without his client, as provided by § 5717 of the Civil Code of 1910. It was the duty of the defendant to be present in court until the hearing on all branches of the case was finally terminated, and the showing made for a continuance did not come up to the rule in such eases; and therefore the trial judge did not err in refusing to continue the hearing on the question of an allowance of attorney’s fees.

Judgment affirmed.

All the Justices concur, except Atkinson and Hines, JJ., dissenting, and Gilbert, J., absent for providential cause.