Coley v. Coley
| Decision Date | 11 July 1907 |
| Citation | 58 S.E. 205,128 Ga. 654 |
| Parties | COLEY v. COLEY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a wife filed suit against her husband for permanent alimony and also applied to have temporary alimony awarded for the benefit of herself and their child of tender years, and where the presiding judge declined to award temporary alimony or attorney's fees to the wife, but directed that a certain amount should be paid by the husband each month for the support and maintenance of the child, and to the ruling denying temporary alimony and attorney's fees for her the wife excepted, the fact that while the case was pending in this court she collected some of the amount awarded for the support of the child will not be ground for dismissing the bill of exceptions.
Where a wife sues her husband for permanent alimony on the ground that they are living separately, and applies for temporary alimony pending the suit on the hearing of the application for temporary alimony the merits of the case are not in issue, and the presiding judge will not generally refuse alimony merely because the evidence is conflicting, or the right to permanent alimony on the final trial may be doubtful; but it is not an invariable or arbitrary rule that alimony must be awarded upon proof of the marriage and separation, without regard to the circumstances of the case. The presiding judge, in fixing the amount of alimony, may inquire into the cause and circumstances of the separation rendering the alimony necessary, and in his discretion may refuse it altogether, if the evidence so warrants, or, if there is a minor child, he may award an amount for the support of the child, and refuse to award alimony for the wife.
[Ed Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 1084, 1085.]
Error from Superior Court, Pulaski County; J. H. Martin, Judge.
Action by Mary Coley against B. B. J. Coley. From the judgment plaintiff brings error. Affirmed.
Mrs Mary Coley brought suit for temporary and permanent alimony against her husband, B. B. J. Coley, alleging that her husband had driven her away from home without cause, that they were living in a bona fide state of separation, and that she had no means of support for herself and their minor children, except to seek employment as a domestic servant. On the hearing of the application for temporary alimony, she alone testified on her own behalf. Ten witnesses were introduced on behalf of the defense, several of whom testified that they knew her general character for truth and veracity in the community in which she lived, that it was bad, and that they would not believe her on oath. Several others testified that she was not driven from home by the defendant, but left of her own accord; that she was violent and abusive toward him, cursing him, threatening to kill him, and indulging in the most foul, vulgar, and indecent language in his presence and that of his young children by a former marriage; that she left once, and afterwards returned, and then left again; that when she came back she said that she "didn't have anything on" the defendant, and that she had come back to get something against him, but that she had been unable to do so, and was going to leave again. Prior to her marriage she had been employed in a hotel. The presiding judge refused to grant temporary alimony or attorney's fees to the wife, but allowed $5 per month for the benefit of the minor child. The plaintiff excepted.
Hardeman & Jones, for plaintiff in error.
Fort & Grice, for defendant in error.
1. On the call of the case in this court a motion was made to dismiss the writ of error, on the ground that the plaintiff had collected some alimony under the order and had sought to collect more. In support of the motion a letter, bearing date after the filing of the bill of exceptions, from counsel for plaintiff to one of the counsel for defendant, was presented. A statement in it indicated that the plaintiff had collected three or four of the payments ordered to be made for the benefit of the child, and the attorneys urged that other payments which were in arrears should be made. If a judgment is rendered in favor of the plaintiff, which she thinks too small, she may except and have the question tested, or she may suppress her dissatisfaction and collect the judgment. She cannot do both. Owens v. Read Phosphate Co., 115 Ga. 768, 42 S.E. 62. Were this judgment in favor of the wife and for her benefit, the motion to dismiss would prevail; but where the presiding judge refused alimony for the wife, and only made provision for maintenance of the little child of the two parties, we do not think it would be within either the spirit of the justice of the law to hold that she must repudiate this entirely, and allow the child to suffer, in order to permit her to except to the refusal of alimony for her. The motion is overruled.
2. Formerly a wife had no separate property. What she had at marriage and what she acquired afterwards vested in the husband. If a separation occurred, whether a divorce was pending or not, starvation or suffering was often imminent unless provision were made for her support from the property of her husband, or unless she was cared for by the charity of friends or relatives. It was thus almost a matter of course to grant temporary alimony to the wife where a divorce suit was pending between her and her husband. In the great change which has come into the law in respect to the property of married women, under which she not only retains the property which she had at marriage, and that which she acquires subsequently, but sometimes holds the title of all the family property, the rigid application of the old rule in regard to the granting of alimony has been somewhat modified. In the first Code of the state it was provided that, "on application for temporary alimony, the merits of the cause are not in issue, though the judge, in fixing the amount of alimony may inquire into the cause and circumstances of the separation rendering the alimony necessary, and in his discretion may refuse it altogether." See Civ. Code 1895, § 2460. When the original Code was adopted there was no provision for granting temporary alimony except...
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