Wise v. Wise , 1924 Ga. LEXIS 257 ( 1924 )

Atkinson, J.

1. Wlien the ease was before the Supreme Court on a former occasion (Wise v. Wise, 156 Ga. 459, 119 S. E. 410), it was stated that error was assigned, “on that portion of the decree which orders that the fees of the attorney for plaintiff be paid out of the property set apart to her by the jury as permanent alimony; the ground of exception being that such fees were chargeable under the law to the defendant.” The decision upon this assignment of error was: “In a suit instituted by a wife for a divorce and permanent alimony, where the verdict of the jury grants a final divorce between the parties and awards to the wife specified property, as indicated in the preceding division, as permanent alimony, there is no provision of law which authorizes the judge in rendering a decree on such verdict to direct that the fees of the attorneys for the plaintiff be paid out of the property awarded as permanent alimony.” Held, that this decision did not hold, as is now contended, that the judge should have rendered a judgment charging the defendant with attorney’s fees. All that was held was that the judge erred in directing the payment of attorney’s fees out of property awarded to the plaintiff as permanent alimony.

No. 4054. March 13, 1924.

2. The verdict did not find any amount against the defendant for attorney’s fees as a part of the expenses of the litigation (although the petition contained allegations and a prayer on that subject), and did not furnish a basis for a decree for such fees.

3. Counsel fees for representing a wife in an application for pei'manent alimony are allowable by the judge as expenses of litigation, as temporary alimony is allowed. Civil Code (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 eases should precede the final verdict. Van Dyke v. Van Dyke, 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 that 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. Philips, 146 Ga. 61 (90 S. E. 379).

4. Applying the foregoing, the judge erred, under the facts of this case, in rendering' a decree requiring the defendant to pay counsel fees for the plaintiff’s expenses of litigation.

Judgment reversed.

All the Justices concur. Charles II. Hall, for plaintff in error. Powers & Pow.ers, contra.