Rast v. Rast , 113 Ala. 319 ( 1896 )

HARALSON, J.

1. The allowance of temporary alimony pending a suit for divorce, whether the bill be filed by the husband or wife, is not a matter of discretion, but of right in favor of the wife, subject to review as for the amount that may be allowed.-Code of 1886, § 2331; Edwards v. Edwards, 80 Ala. 97; Mahone v. Williams, 39 Ala. 212; Jeter v. Jeter, 36 Ala. 391.

The amount to be allowed cannot be subjected to any definite or fixed rules, but must depend upon the circumstances in life and the social position of the parties. It must be a matter largely within the discretion of the trial court; and it is said, that the uniform practice of revising tribunals, is to affirm such decrees, unless there is presented a strong case of error.-Jeter v. Jeter, supra.

2. The amount allowed as temporary alimony, for the four months from the filing of the bill to the rendition of the final decree was $50, or $12.50 per month. We are unable to disagree with the chancellor as to this allowance. It does not plainly appear that he was in error in making it.

3. It was proper to allow the wife a reasonable sum as a solicitor’s fee for conducting her defense. Without such an allowance, where a wife has no adequate sejia-rate estate, she might be at the mercy of her husband in such proceedings. It has long been the practice in this State, to allow such fees in proper cases. They may be regarded as a part of her temporary alimony, necessary for the maintenance of her suit.-Jeter v. Jeter, 36 Ala. 392; 1 Amer. & Eng. Encyc. of Law, 474, 477. In this case, the court proceeded according to the prescribed rule, to refer it to the register to ascertain and report what sum should be allowed defendant’s counsel. It appears, the wife was indigent, had no separate estate, and counsel for complainant and defendant agreed in writing, that if defendant was entitled to such a fee, the sum of $40 would be a proper allowance.

4. We are unwilling to review the learned chancellor in the allowance made for permanent alimony. It was under the evidence certainly full enough, but it has not been made to appear that the allowance was too great, at the present time. It may turn out, in the course of time, from the increasing age and infirmity of complainant, or from other conditions and circumstances which he may be unable to control, that $10 a month will become too burdensome for him to pay. To meet such contingencies the court very wisely retained jurisdiction of the cause, to modify the decree as to permanent alimony, on the application of complainant, in such manner as may be just and equitable.

Affirmed.