
    Byrd v. Byrd.
    No. 4026.
    March 12, 1924.
   Russeií, C. J.

The plaintiff in error filed a petition for divorce. The defendant in error filed an answer and cross-bill, denying the allegations of the petition, alleging that she was entitled to a divorce, and asking for alimony and counsel fees. Plaintiff’s petition set out a contract between the husband and wife, in which all claims for alimony and support on the part of the wife were surrendered in consideration of the payment of $100' in cash and the payment to her of $50 per month for eight months by the husband. In the answer it was alleged that the contract was obtained by duress, and that the monthly payments accepted by the wife from the husband were really necessary for her support. The pleadings presenting issues of fact as to whether the contract was the result of duress, as well as whether the agreement was made to promote a separation rather than in consequence of a separation, the trial judge did not err in declining to pass upon the validity of the contract in advance of a determination of these issues of fact, nor in awarding alimony and counsel fees ad interim. Regardless of the validity of the contract of separation, it was not error to grant counsel fees, since the filing of the suit for divorce by the husband entitled the wife, as defendant in said suit, to the services of counsel to represent her in the divorce proceedings.

Judgment affirmed.

All the Justices concur.

Fulton superior Divorce and alimony. Before Judge Bell, court. September 34, 1933.

Harwell F airman & Barrett, for plaintiff.

W. 8. Coburn, Branch & Howard, and James A. Miller, for defendant.  