Parker v. Parker , 71 Miss. 164 ( 1893 )

Campbell, C. J.,

delivered the opinion of the court.

We find no fault with the allowance by the court for the maintenance of the wife, but it seems to us that the allowanee for counsel fees is exorbitant. It is apparent that it was fixed on the basis of full compensation to her counsel for conducting her defense to the end of the litigation, and to result in the allowance to her of permanent alimony. This is premature. The allowance for means of defense should be limited by the necessity of the case and the reasonable cost of conducting the case of the wife; and, tested by this rule, the sum allowed for counsel fees should not have exceeded $100.

It is not to be assumed in advance that the wife will be successful, and secure a liberal alimony in the end, and pay her counsel on that basis pendente lite. A just allowance should be made for her defense, and, if she obtain large alimony, she can pay her counsel for that out of that. The court need not at once fix the sum to be allowed for counsel fees, and should not attempt to provide for contingencies. It may, from time to time, as the cause progresses, protect the wife by making proper allowance for her expenses of litigation. Its power is not exhausted by one exercise of it, and this furnishes a reason for not anticipating results and adjusting counsel fees on any assumed contingency. It is manifest from the testimony that the wife could secure proper counsel for the defense of her cause for much less than the sum allowed by the chancellor, and this is the true test. She is not to be allowed what may be considered just, as between her and the particular counsel employed, but what is a reasonable sum for the services of competent counsel in such a case. Grave considerations of policy forbid extravagant allowances by the court in such cases, and they should, in all cases, be limited by what is reasonable and proper to accomplish the purpose for which they are made.

In this case, the court directed the payment of the fee fixed to the solicitors of the wife instead of to her. This was not proper. The allowance is one to the wife, and not to persons not parties to the ease.

The decree is reversed in so far as it allows $150 payable to counsel, and decree may be entered here, if desired, for the requirement that the complainant shall pay $100 to the defendant for expense of her defense.

Decree accordingly.