Allen v. Allen
| Decision Date | 21 September 1942 |
| Docket Number | 14194. |
| Citation | 22 S.E.2d 136,194 Ga. 591 |
| Parties | ALLEN v. ALLEN. |
| Court | Georgia Supreme Court |
Rehearing Denied Oct. 14, 1942.
R B. Pullen and Noah J. Stone, both of Atlanta, for plaintiff in error.
Houston White and Augustus M. Roan, both of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
1. Under the unambiguous terms of the Code, § 30-213, a proceeding by a wife living separate from her husband, for alimony alone, 'shall be in abeyance when a petition for divorce shall be filed bona fide by either party, and the judge * * * shall have made his order on the motion for alimony, and when so made, such order shall be a substitute for [any previous] decree in equity, as long as said petition shall be pending and not finally disposed of on the merits.' See Evans v. Evans, 191 Ga. 752, 14 S.E.2d 95; Higgs v. Higgs, 144 Ga. 20(2a), 85 S.E 1041. Where, on a petition for alimony alone, the court entered an order allowing temporary alimony 'until further order,' and attorney's fees for services in that proceeding, the court was not precluded, on a subsequent petition by the wife for a divorce, temporary and permanent alimony, and attorney's fees, from making a new allowance of temporary alimony and an attorney's fee in the divorce suit, 'in lieu of all payments now being made by the defendant to the plaintiff,' since an order allowing temporary alimony is 'subject to revision by the court at any time' (Code, § 30-204), and the previous order also expressly reserved that right; and since the right to pass the subsequent order in the divorce case was also accorded by § 30-213. Such second order was not erroneous in failing to expressly provide for the abatement of the former alimony suit, since the terms of the statute itself rendered the former proceeding, 'in abeyance.' Nor was the defendant subjected to the danger of a double allowance since the second order provided that payments thereunder should be 'in lieu of any and all payments now being made' under the former order.
(a) The court did not err in failing, on motion, to consolidate the suit for alimony alone with the suit for divorce and alimony, since the purposes and questions involved in the two suits were different, and since the alimony statute (§ 30-213) provides that the pendency and order for alimony in the second suit shall render the first suit for alimony alone in abeyance.
2. As to the allowances of temporary alimony and an attorney's fee to the wife in her suit for divorce and alimony, the only exception is to the grant of the fee. Since, under the preceding rulings, such an allowance was proper, and there is no attack upon it as excessive or otherwise illegal, the judge did not err in making the allowance covering services in the present suit. See Code, § 30-202; Thomas v. Smith, 185 Ga. 243, 194 S.E. 502, and cit.; Sweat v. Sweat, 123 Ga. 801, 802, 51 S.E. 716; Chapman v. Chapman, 162 Ga. 358, 133 S.E. 875; Ogletree v. Ogletree, 169 Ga. 366(3), 150 S.E. 167.
3. A petition for divorce may contain grounds both of cruel treatment and of desertion, without asserting inconsistent rights or remedies, or putting the plaintiff to an election between such grounds. Zachary v. Zachary, 141 Ga. 404, 81 S.E. 120; Phinizy v. Phinizy, 154 Ga. 199(1 a, d), 114 S.E. 185; Wilkinson v. Wilkinson, 159 Ga. 332, 125 S.E. 856.
4. While desertion as a ground for divorce must not only have continued for three years, but must have been 'wilful' (Code, § 30-102(7), and therefore a separation based merely on a voluntary agreement by both parties that they shall live apart, will not constitute the necessary element of wilfulness as to a desertion by either party. (Cagle v. Cagle, 193 Ga. 34, 35, 17 S.E.2d 75; Phinizy v. Phinizy, supra, and cit.), the instant petition by the wife for a divorce on the grounds of desertion and cruel treatment was not subject to demurrer as to the ground of desertion, in that it showed any voluntary separation on the part of the wife, either begun or continued by her consent. On the...
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...if she proved either ground she would be entitled to a divorce. Adams v. Adams, 177 Ark, 374, 376, 6 S.W.2d 290, 291; Allen v. Allen, 194 Ga. 591, 592, 22 S.E.2d 136, 138; Carawan v. Carawan, 203 Ga. 325, 326, 46 S.E.2d 588, 589; Whitcomb v. Whitcomb, 115 Vt. 331, 332, 58 A.2d 814, 815; 27 ......
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