Van Dyke v. Van Dyke , 125 Ga. 491 ( 1906 )

Evans, J.

(After stating the facts.) 1. It has been the constant practice of the courts to embrace counsel fees in the wife’s allowance for temporary alimony. These fees are allowed as being necessary to furnish the wife the means with which to test the sufficiency of the grounds contained in her libel for divorce. Sprayberry v. Merck, 30 Ga. 81. Expenses of litigation, which include counsel fees, are a part of the temporary alimony which the court may allow the wife in its order granting her temporary alimony. Civil Code, §2457. And it is generally held that the application for the payment of the expenses and counsel fees of the wife should be made pendente lite and allowed as part of the temporary alimony. 14 Cyc. 761. In the present case the libel for divorce was, before final verdict, amended, without objection, by adding a prayer for the recovery of permanent alimony and counsel fees; and they were recovered in the verdict and decree. No exception was taken to the verdict or the decree. The court had jurisdiction both of the parties and of the subject-matter; and even if the court'erroneously allowed a recovery.of counsel fees as a part of the permanent alimony, the defendant, by failing to except to this action of the court, was concluded by the judgment. Crow v. American Mortgage Co., 92 Ga. 815. Mere error in rendering a judgment can not, after the time for excepting has expired, be assigned by a motion to set aside the judgment, or by showing the error in a collateral proceeding. Baker v. Baker, 113 Ga. 378. The answer of the defendant, in which he alleged that counsel fees were improperly allowed in the final verdict -and decree in the divorce case, was properly held to be insufficient as establishing the invalidity of the decree as to the counsel fees recovered.

2. The point made by the demurrer is that the provision in the final decree entered in the divorce case, for counsel fees, can not be enforced by attachment. The fees allowed were incidental to and part of the permanent alimony decreed to be paid to the wife. The enforcement by attachment of the payment of permanent alimony adjudged in the divorce decree is not an open question in this State. In Lewis v. Lewis, 80 Ga. 706, the wife had obtained a verdict and decree for a total divorce and for a stated sum for permanent alimony, including counsel fees, and had subsequently applied for an attachment for contempt against the husband because of his failure to comply with the decree in her favor for alimony, which contempt proceeding was resisted by the husband on the ground that the court was without power to attach him for contempt for failing to pay the allowance fixed by the verdict of the jury. These facts, though not fully set forth in the official report of the case, are disclosed by the record of file in the office of the cleric of this court. It Avas there ruled: “When a Avife has obtained final decree for alimony and the husband fails to comply therewith, and' it is sufficiently shown to the cpurt that this failure does not arise from lack of ability on the part of the husband to comply, it is not error for the court to compel compliance, by an order of attachment directing his imprisonment in the event of his continued disregard of the decree.” Also, in a case Avhere no divorce suit is jDending and the husband and Avife are bona fide in a state of separation, and alimony has been allowed as provided in the Civil Code, §2467, its payment may be enforced by attachment. Lester v. Lester, 63 Ga. 356; Briesnick v. Briesnick, 100 Ga. 57. The right to enforce payment of permanent alimony by contempt proceedings belongs inherently to a court having jurisdiction of divorce suits; and the demurrer was properly overruled.

3. The plaintiff in error did not in his answer seek to purge himself of contempt because of his inability to pay the fees awarded in the decree. He resisted making the rule absolute solely because of the alleged invalidity of the decree, and on the ground that, even if it was valid, the collection of the counsel fees therein adjudged could not be enforced by contempt proceedings. As he was wrong in both of his legal contentions, and did not ask for the discharge of the rule because of inability to comply with the decree, there was no error in making the rule absolute. Baker v. Baker, supra.

Judgment affirmed.

All the Justices concur, except Lumpkin, J., disqualified,.