Gilbert v. Gilbert

• Decision Date: 13 May 1921
• Docket Number: (No. 2243.)
• Citation: Gilbert v. Gilbert, 151 Ga. 520, 107 S.E. 490 (Ga. 1921)
• Parties: GILBERT v. GILBERT.
• Court: Georgia Supreme Court

151 Ga. 520

107 S.E. 490

GILBERT

v.GILBERT.

(No. 2243.)

Supreme Court of Georgia.

May 13, 1921.

(Syllabus by the Court.)

vorce, was res ad judicata; and the court did not err in dismissing the petition seeking an additional allowance.

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Suit by Julia Gilbert against Thomas Gilbert for divorce. Application, after decree of divorce granted plaintiff, for increase of alimony, denied, and plaintiff brings error. Affirmed.

Mrs. Julia Gilbert filed her petition against Thomas Gilbert, alleging that they had been husband and wife, and lived together as such for 13 years; that two children were born of this marriage, one being 15 years of age and the other 13 years of age at the time of the filing of this petition; that on August 31, 1917, the marriage relations between plaintiff and defendant were dissolved by a verdict and decree of Bibb superior court, and by the terms of the decree the custody of the children was awarded to petitioner, and it was further adjudged and decreed that petitioner should receive $1 per month as permanent alimony for herself, and should receive the further sum of $40 a month as permanent alimony to be used for the benefit of the children; that the sum awarded under the decree is insufficient for the support and maintenance of the minor children, on account of the increase in the cost of the necessaries of life since the date of the decree, and, moreover, the needs of the minor children as they advance in years are largely increased, both of the children being girls; that petitioner has been forced to contribute out of her earnings to the support of the children, and that now, on account of ill health, she is unable to work and earn anything at all; that the father of the children, the defendant, is able to furnish them with sufficient money to meet their needs; that he is earning the sum of $300 per month as a traveling mechanic, besides having an income from several investments; and that at least a sum of $85 per month is necessary to meet the actual expenses incurred in supporting the children, and the allowance of $40 per month is unjust and inequitable. The decree and judgment for alimony is in part as follows:

"It is further ordered and adjudged that the said Thomas Gilbert pay to Mrs. Julia Gilbert the sum of $40 per month, being $20 per month for Louise and Kathleen Gilbert each; * * * said sum of $40 being the permanent alimony allowed said minor children, until the further order of this court."

Thomas Gilbert has made payments in accordance with this decree. Petitioner prays that the decree be modified and changed, and that she be granted the sum of $45 a month additional as permanent alimony for the two children's support, and the sum of $45 a month as temporary alimony for the same children, besides a reasonable sum as attorney's fees. The defendant filed a plea of res ad judicata, and also general and special demurrers. Upon a hearing at chambers before the appearance term, the court considered the demurrer, as stated in his order, as a showing upon the law in the case, and held that the issue raised by the petition had been formerly adjudicated, and it was therefore ordered and adjudged that the prayers of the petitioner for alimony and attorney's fees in addition to the amount awarded under the former decree and judgment be denied. The plaintiff excepted.

B. B. Renitz and H. F. Strohecker, both of Macon, for plaintiff in error.

Robt. G. Plunkett, of Macon, for defendant in error.

BECK, P. J. (after stating the facts as above). [1, 2] Some three years prior to the filing of the present suit the marriage relations between the plaintiff and the defendant had been dissolved by a verdict and decree of divorce then rendered. The suit upon which the verdict and decree was rendered, dissolving the marital relations between the plaintiff and the defendant, and awarding stated sums as permanent alimony for the wife and for the support and maintenance of the children, was between the same partie...