Robertson v. Robertson, 17378

• Decision Date: 12 March 1951
• Docket Number: No. 17378,17378
• Citation: 207 Ga. 686,63 S.E.2d 876
• Parties: ROBERTSON v. ROBERTSON.
• Court: Georgia Supreme Court

Page 876

63 S.E.2d 876

207 Ga. 686

ROBERTSON v. ROBERTSON.

No. 17378.

Supreme Court of Georgia.

March 12, 1951.

Syllabus by the Court.

1. 'Alimony is an allowance out of the husband's estate, made for the support of the wife when living separate from him. It is either temporary or permanent.' Code, § 30-201. (a) The necessities of the wife, when entitled to alimony, and the husband's ability to pay it, are the controlling factors to be considered and followed in making an allowance for alimony; and awards therefor which are substantially disproportionate to either should not be permitted to stand.

2. Under the facts of the instant case, the verdict for permanent alimony was grossly excessive; and, being so, a timely motion to set it aside for that reason should have been sustained. It was error not to do so.

G. Dean Carter and Howard, Tiller & Howard, all of Atlanta, for plaintiff in error.

Swift Tyler, Marvin O'Neal, Jr., Atlanta, for defendant in error.

CANDLER, Justice.

Mrs. Miriam B. Robertson brought a suit for divorce and alimony against her husband, Dr. James G. Robertson, on the ground of cruel treatment. She also prayed for the custody and control of their two minor children. Concerning alimony, the petition alleges that neither of the parties has any real estate; that the defendant owns a 1949 Ford automobile, valued at approximately $2000; and that he is a highly educated and successful surgeon, with an unlimited earning capacity. The defendant filed an answer denying all of the allegations of the petition charging him with cruelty. He also denied that he owns an automobile. He admitted that he is a surgeon, but said that he is physically unable to carry on the work of his profession because he is presently afflicted with active pulmonary tuberculosis, which he contracted during his military service in the recent World War. He further said that he is a totally disabled World War veteran; and that his only income from any source is $195 per month which he received from the Veterans Administration as compensation for his injury, which is rated by that agency of the government as total. A jury found that Mrs. Robertson was entitled to a divorce. It also found that she was personally entitled to an award of $100 per month as permanent alimony until she remarries, and a like amount monthly for each of her two children until they reach their thirteenth birthday and, after that, $150 per month for each of them until their respective majority or marriage, whichever shall first occur. It also removed the defendant's disabilities. A decree was entered accordingly. Custody of the two minor children of the parties was awarded by the court to Mrs. Robertson. In due time, the defendant filed a motion to set aside the verdict and decree in so far as it related to and made an award for permanent alimony, both as to the plaintiff and their children. As grounds therefor, it was alleged, in substance, that the verdict for alimony was, under the evidence, grossly excessive and therefore illegal; and that the court erred on the trial in admitting, over timely and proper objections certain testimony with reference to items of money which the defendant had obtained from his mother periodically since 1947. And in that connection it was alleged that this testimony was offered by the plaintiff for the purpose of showing the defendant's income; and since the amounts so received by him from his mother were only temporary loans to him for the purpose of enabling him to meet necessary current expenses, such testimony did not illustrate his ability to pay alimony, and was therefore inadmissible because immaterial, irrelevant, prejudicial, and hurtful to his defense. The motion was not challenged as to form or as to any requirements of the Code. It was contested solely on the merits. After a hearing, the motion was overruled and the defendant excepted.

1. As defined in our Code, § 30-201, 'Alimony is an allowance out of the husband's estate, made for the support of the wife when living separate from him. It is either temporary or permanent.' The necessities of the wife, when entitled to alimony, and the husband's ability to pay it, are the controlling factors to be considered and followed in making an allowance for alimony, temporary or permanent. Methvin v. Methvin, 15 Ga. 97; Besore v. Besore, 49 Ga. 378, 379; Hawes v. Hawes, 66 Ga. 142; Melvin v. Melvin, 129 Ga. 42, 43, 58 S.E. 474; King v. King, 170 Ga. 291, 152 S.E. 574; Taylor v. Taylor, 189 Ga. 110(2), 5 S.E.2d 374; Braswell v. Braswell, 198 Ga. 753(2), 32 S.E.2d 773. And this court has frequently and consistently refused to put its stamp of approval on awards therefor which were, under the evidence, sustantially disproportionate to either. Pinckard v. Pinckard, 23 Ga. 286; Ayers v. Ayers, 99 Ga. 325, 25 S.E. 674; Johnson v. Johnson, 131 Ga. 606, 62 S.E. 1044; Davis v. Davis, 138 Ga. 8, 74 S.E. 830; Arnold v. Arnold, 141 Ga. 158, 80 S.E. 652; Potter v. Potter, 145 Ga. 60, 88 S.E. 546; Lightfoot v. Lightfoot, 149 Ga. 213, 99 S.E. 611; Porter v. Porter, 178 Ga. 784, 174 S.E. 527; Weatherford v. Weatherford, 204 Ga. 553, 50 S.E.2d 323.

2. By an act of the General Assembly of 1946, Ga.L.1946, p. 90, a verdict or judgment for divorce and permanent alimony does not become final for thirty days; and, during that...