Parks v. Parks

• Decision Date: 09 August 1906
• Citation: 55 S.E. 176,126 Ga. 437
• Parties: PARKS v. PARKS.
• Court: Georgia Supreme Court

55 S.E. 176

126 Ga. 437

PARKS v. PARKS.

Supreme Court of Georgia

August 9, 1906

Syllabus by the Court.

This being an application for temporary alimony and counsel fees and the evidence as to the cause of the separation being conflicting, the discretion of the judge in refusing the application altogether will not be controlled.

Error from Superior Court, Morgan County; H. G. Lewis, Judge.

Action by Kissie Parks against Lee Parks. Judgment for defendant and plaintiff brings error. Affirmed.

M. C. Few, for plaintiff in error.

W. C Thompson, for defendant in error.

COBB P.J.

Whenever an action of divorce is brought by either party, the judge is authorized to grant to the wife temporary alimony, including expenses of litigation. Civ. Code 1895, § 2457. This may be also done upon proper application by the wife, when there is no action for divorce pending. Civ. Code 1895, § 2467. In either event the judge may inquire into the cause and circumstances of the separation, and in his discretion may refuse the application for alimony altogether. Civ. Code 1895, § 2460. Counsel fees allowed to the wife under such circumstances, or "suit money," as they are sometimes called, are allowed as necessaries to the wife, and she is authorized under the law to pledge her husband's credit for the same. 2 Bishop on Marriage, Divorce, and Separation, 973; 2 Nelson on Divorce and Separation, § 876. In Sprayberry v. Merk, 30 Ga. 81, 76 Am.Dec. 637 Judge Stephens said: "It is worthy of remark that counsel fees are allowed as part of her necessary maintenance, and are allowed before it is ascertained whether she has valid grounds of divorce or not." See, also Killiam v. Killiam, 25 Ga. 186; Weaver v. Weaver, 33 Ga. 172. In some instances counsel fees have been allowed, although temporary alimony was refused. 2 Nelson on Divorce and Separation, § 824. But in all cases the allowance both of alimony and counsel fees, or the allowance of one and the disallowance of the other, is a matter addressed to the sound discretion of the judge, after an examination into the causes of the separation and the circumstances of the parties. He may grant both. He may grant one and refuse the other, or he may refuse both. Unless this discretion is abused, this court will not interfere with the order of the judge granting or refusing the application for alimony. In the present case the evidence as to the cause of separation was...