Phinizy v. Phinizy ( 1921 )

Hill, J.

(After stating the foregoing facts.)

1. The sections of the Civil'Code (1910) which bear upon the question at issue, are as follows: § 2976. “Whenever an action for divorce, at the instance of either party, is pending, or a suit by the wife for permanent alimony, the wife may, at any regular term of the court in which the same is pending, apply to the presiding judge, by petition, for an order granting to her temporary alimony., pending the cause; and after hearing both parties, and evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the husband and the facts of the case may justify.” § 3977. “In arriving at the proper provision, the judge shall consider the peculiar necessities of the wife, growing out of the pending litigation; he may also consider any evidence of a separate estate owned by the wife, and if such estate is ample, as compared with the husband’s, temporary alimony may be refused.” § 3979. “ On application for temporary alimony, the merits of the cause are not in issue, though the judge, in fixing the amount of alimony, may inquire into the cause and circumstances of the separation rendering the alimony necessary, and in his discretion may refuse it altogether.” It is admitted on argument here that when legal proceedings are instituted by a wife against her husband either, for alimony or for divorce, she has the right to have her husband pay the expenses of litigation,.including attorney’s fees; but it is insisted by the plaintiff in error that while a wife has such rights against her husband, there is no limit placed upon her by law to dispose of or contract such rights away, and that this was done in the instant case under the contract already set out. It is contended that under this contract Mrs. Phinizy not only contracted away all of her rights to alimony, both temporary and permanent, but also all of her legal rights to require her husband to pay legal expenses including her attorney’s fees, except as set out in the agreement. It is pointed out that the agreement expressly provided in paragraph 6 that should “ either party find it necessary to take action in court to enforce any rights hereunder, the party making such proceeding necessary shall pay all expenses thereof, including reasonable attorney’s fees.” It is argued from this that the parties intended,to make the agreement exhaustive of all their financial rights, claims, or obligations legally existing under their marital relations. We can not agree with these conclusions. We think that the contract entered into between the plaintiff and defendant does not bar the defendant from her right to have attorney’s fees with which to defend the divorce suit. The agreement evidently did not contemplate divorce proceedings. Properly construed it contemplates, a continuation of a state of separation between the parties, who, so far as the contract shows, were to remain as husband and wife; and we can not assume that they had in contemplation that the husband would change that status by bringing a suit for divorce against his wife and thus put upon her the burden of defending such suit; and it appears from the record that she is defending it, and sets up that she did not desert her husband as alleged in the petition. The case is similar in its facts to that of Killiam v. Killiam, 25 Ga. 186, where this court held: “Where the husband, and wife separate by agreement, and she takes back as her separate estate the property which she brought into the marriage, and subsequently the husband sues for a total divorce, no further allowance will be made to the wife, for her maintenance during the pending of the libel; the court, however, will, upon application, compel the husband to advance to the wife money enough to cover the expense of defending the litigation.” The Killiam case was an application by the wife, who was the respondent in the libel, for alimony and counsel fees. The parties were married in February and lived together until August ensuing, when they separated; the husband allowing the wife to take home with her all the property she brought, amounting in value to some $1200; he retaining his own, valued at five or six thousand dollars. The husband subsequently sued for a total divorce on account of both the bodily and mental incapacity of the wife; and she asked for. a support pending the action, and counsel fees to defray the expense of litigation. The court through Lumpkin, J., delivering the opinion, said: '"The view we take of this case is this: When the separation by agreement took place, the wife was content to take back the property she brought into the marriage. She deemed this enough for her maintenance, and we leave hor to abide by it. The husband has executed and filed a deed to her in the clerk’s office, for the property; and if it be not valid, it can be made so. But she did not, perhaps, anticipate a suit for divorce; and this is an additional expense that she has been forced to incur by the husband; and we hold that an additional allowauce should be made, to cover the expense of this litigation, which she has a right to resist; not only to repel the imputation cast upon herself,” etc. It will be observed that in that case alimony as such was refused, but that attorney’s fees were allowed. That decision was rendered in 1858, before the married woman’s act of 1866. The court evidently treated the money which the wife had brought into the marriage as the property of the husband, and, under the agreement between the husband and wife, that stood in lieu of alimony. It will be observed, too, that the court stated in that case that the wife “ did not perhaps anticipate a suit for divorce; and this is an additional expense that she has been forced to incur by the husband.”

In the case of McGee v. McGee, 10 Ga. 477, 484, Judge Nisbet, discussing the question of the right of the wife, pending a suit for divorce, to maintenance and expenses which she may incur in conducting it, said: “ Whatever may be said of the policy of divorces, the right to the means of prosecuting them, and of support during their pendency, so long as they are authorized by law, can not be-questioned. The right to be divorced would be a bitter mockery, if to obtain it an injured wife is obliged to endure, not only violence to womanly delicacy, but penury and destitution. Equally revolting is it to a proud, albeit a wounded spirit, to be constrained to sue (as Judge Gaston suggests she may sue) in forma pauperis, and beg the whilst for food and raiment. Rather than submit to humiliation so great, an innocent woman would forego her rights, and endure the iron even whilst it pierced her heart.- And what if she be not innocent — what if her suit be unfounded or her defense impossible? Surely, even then, she is entitled to the privilege of the vilest felon, that of being heard. To be heard she must have the means. To be heard, as becomes a prima facie innocent wife, she must appear before the court and the country, not as a dependent for maintenance, but as a law-protected woman.”

We think, from a reading of the contract, it is clear that the parties thereto not only contemplated that a state of separation would continue between them as man and wife, but that no divorce proceedings were in contemplation. Indeed, if the latter were in contemplation when the contract was made, it is doubtful whether such contract could be enforced. Having held, therefore, that the agreement provided for a continuation of the separation of the parties, we think that Civil Code § 2976, quoted in the beginning of this opinion, is applicable. From the foregoing we conclude that the court did not err in awarding to the defendant attorney’s fees with which to defend her rights whatever they may be, under the answer which she filed to the divorce suit, denying the grounds thereof.

2. In view of the imcontradieted evidence which shows the plaintiff to be worth approximately one millón dollars, the circumstances of the parties, and of the defense which is set up in the case, it can not be held that the fee of $2,000 which was allowed by the court is excessive.

Judgment affirmed.

All the Justices concur.