LIVINGSTON, Chief Justice.
Kathryn Low Davenport sued Hope Davenport for a divorce in the Circuit Court of DeKalb County, Alabama, in Equity. She prayed for a decree of divorce, a vinculo matrimonii, permanent alimony, and alimony pendente lite. She alleged cruelty and habitual drunkenness. Hope Davenport filed an answer which contained, in effect, a general denial and allegations that the appellee, the wife, was also an habitual drunkard. It is not clear from the answer whether the husband was attempting to contest the divorce or just the granting of alimony.
On January 8, 1962, on a sworn bill, the trial court instructed the register to "hold a reference to ascertain a reasonable alimony to be allowed the complainant for support and attorneys' fees to be paid pending the litigation in this case, and immediately report his finding to the court."
Such a reference was held, and on the 11th day of May, 1962, the register filed a report in which he set the attorneys' fees pendente lite at $200 and the temporary alimony at $100 per month.
An exception to this report of the register was filed by the husband, Hope Davenport, and an answer to the exception was filed by the wife. The record does not disclose either a ruling on the exception to the report of the register or the answer to the exception.
The cause was tried on depositions taken before the register, and on the 31st day of August, 1962, the trial court entered its decree, which in pertinent part, is as follows:
There are eight assignments of error. The first of these is not argued in brief and is therefore waived. Supreme Court Rule 9, Title 7, Appendix, Code of Alabama 1940; Epperson v. Stacey, 266 Ala. 396, 96 So.2d 750.
Appellant's Assignment of Error No. 2 insists "That the Court erred in holding that the Appellee should recover the sum of $180.00 for unpaid alimony installments, which has never been decreed by the Court."
We do not agree. The alimony referred to in this assignment of error and in this part of the decree was alimony pendente lite, and while such an award is usually made at an earlier stage of
By his third assignment of error, appellant insists that an award of $300 for attorneys' fees was excessive. This is a matter within the sound discretion of the court. Davis v. Davis, 255 Ala. 488, 51 So.2d 876. Having considered the financial status of the respective parties, their conduct, etc., we are of the opinion that the fee of $300 is just and reasonable.
Appellant's fourth and fifth assignments of error raise the points that the court erred in granting the divorce and in granting alimony, both on the grounds that the appellee was herself guilty of marital misconduct; this on the theory that appellee was a habitual drunkard. Even if we assume, for the sake of argument, that the evidence supported this argument, appellant has neither alleged nor proved that the appellee became addicted to habitual drunkenness after the marriage. This is an essential element of the ground for divorce. Title 34, Sec. 20, Code of Alabama 1940; Meares v. Meares, 256 Ala. 596, 56 So.2d 661; Russell v. Russell, 247 Ala. 284, 24 So.2d 124; Armstrong v. Armstrong, 217 Ala. 581, 117 So. 195. In the absence of this allegation and proof, we can only affirm the trial court's decision in this respect.
Appellant assigns as error the failure of the trial court to order the sale for division of property jointly owned by appellant and appellee. Such a sale was requested by appellee in her bill of complaint and assented to in appellant's answer. Neither party has presented this court with authority for the trial court's ruling on this question. If it be in error, however, it is manifestly without injury, for both parties being willing, there is nothing to prevent a sale of the property and a division of the proceeds.
Appellant further argues that the trial court erred in placing a lien on all of his property to secure the future payment of alimony. Our cases are to the effect that an alimony decree can properly fix a lien on the property of the respondent husband. Wallis v. Wallis, 240 Ala. 439, 199 So. 844; Smith v. Rogers, 215 Ala. 581, 112 So. 190. In the instant case, however, we are of the opinion that such a general and all-inclusive lien as was decreed by the court below is not necessary and would not serve the best interests of the parties. For this reason, we will remand the cause to the court below with instructions to limit the lien to all the real property owned by appellant, and to exclude from the lien all personal property of appellant.
Appellant's eighth assignment of error is that "The Court erred in holding that the evidence introduced by appellee, the Complainant in the Court below, was sufficient upon which the Court could base its decree of August 31, 1962." Such an assignment of error is entirely too general and presents nothing for review. Bertolla v. Kaiser, 267 Ala. 435, 103 So.2d 736.
The appellee, Kathryn Low Davenport, has petitioned this Court for attorneys' fees for the appeal of the case. Appellant filed no brief in opposition to
Affirmed in part, and in part remanded for a decree consistent with this opinion.
LAWSON, GOODWYN and COLEMAN, JJ., concur.