Tidwell v. Tidwell
Tidwell v. Tidwell
Opinion
This is a divorce case. The husband appeals from the trial court's award of alimony and attorney fees to the wife. We affirm.
The parties were married for approximately two months before separation. No children were born of the marriage.
The husband's first contention is that the trial court committed reversible error in awarding attorney fees to the wife without a request and absent evidence of financial need and performance of service. The husband relies on Cinader v.Cinader, *Page 615
Ala.Civ.App.,
[A] request must be made, and evidence of financial need and performance of the service shown before the authority of the court to grant such fees is properly invoked.
The issue in that case was whether the trial court committed error in failing to grant an attorney fee when there had been no request nor evidence of need or service. We held that the court was not in error in refusing to award a fee under such a state of fact. Such conclusion is not contrary to the letter and spirit of the Alabama Rules of Civil Procedure, especially Rule 15 (b). Rule 15 (b) eliminates the requirement of affirmative pleading if the issue has been tried in the case by express or implied consent of the parties. The record in this case shows evidence as to need of the wife and performance of service by her attorney without objection by the husband. The court was not in error in granting a fee without a pleaded request. We would further note that we have not required the wife to prove the reasonable value of her attorney's services in order for the award of a fee in a divorce action to be upheld. Godec v. Godec, Ala.Civ.App.,
The husband's second contention is that the trial court committed reversible error in awarding the wife an attorney's fee based on an alleged agreement between the parties that the award of attorney fees would be left to the discretion of the court without testimony. Whether the trial court relied on such an agreement or not is immaterial in view of our position that a trial court may award attorney fees in its judicial discretion without proof of reasonableness in a divorce action.Hodson v. Hodson,
The husband's third contention is that the trial court erred in awarding the wife alimony in gross when no affirmative relief was requested in the wife's answer nor in any other responsive pleading. Rule 15 (b) and Rule 54 (c), ARCP, eliminate the necessity of strict pleading of issues tried expressly or with the implied consent of the parties. Bouler v.Bouler, Ala.Civ.App.,
The husband's final contention is that the trial court erred in granting alimony in gross to the wife when the parties were married only two months and no children were born of the marriage.
The question of alimony is a matter within the trial court's sound discretion and will not be reversed on appeal in the absence of abuse. Caylor v. Caylor, Ala.Civ.App.,
Appellee is awarded $350 for the services of her attorney on this appeal.
AFFIRMED.
WRIGHT, P.J., and HOLMES, J., concur. *Page 616
Reference
- Full Case Name
- Daniel B. Tidwell v. Patricia McAliley Tidwell.
- Cited By
- 24 cases
- Status
- Published