Sellers v. Sellers

• Decision Date: 16 June 1932
• Docket Number: 8890.
• Citation: 164 S.E. 769,175 Ga. 47
• Parties: SELLERS v. SELLERS.
• Court: Georgia Supreme Court

164 S.E. 769

175 Ga. 47

SELLERS v. SELLERS.

No. 8890.

Supreme Court of Georgia

June 16, 1932

Syllabus by the Court.

Granting temporary alimony after filing of wife's petition for divorce held authorized, though petition was filed after presentation to judge (Civ. Code 1910, §§ 2976, 2980).

Agreement concerning alimony, prior to libel for divorce held not to prevent court from awarding reasonable temporary alimony, where husband failed to pay as agreed.

Judgment that petitioner's attorney in suit for alimony recovery stated sum will be construed as judgment that plaintiff recover attorney's fee.

1. Where a petition in a suit for divorce, as well as for permanent and temporary alimony, and for a writ of ne exeat was presented to the judge for sanction, and he thereupon granted an order nisi requiring the defendant to show cause at a future time why temporary alimony should not be allowed and a writ of ne exeat issue, and the petition thus sanctioned, with the order nisi upon the same, was duly filed the next day in the office of the clerk of the superior court, the judge was not without authority, on the day named for a hearing, which was subsequent to the filing of the petition, to grant an amount authorized by the evidence submitted and to issue the writ of ne exeat, and these orders were not void because the petition was not filed prior to the presentation of the same to the judge.

2. Where prior to a libel for divorce the parties themselves, by contract, agree upon specified sums to be paid to the wife by the husband for the maintenance of the wife and a child, such a contract does not bar the wife from making application for and having allowed to her temporary alimony, where the husband fails to pay the sums agreed to be paid as they fall due; and the court may, upon the wife's application award a reasonable amount as temporary alimony.

3. A judgment that the attorney for the petitioner in a suit for alimony should recover a stated sum as attorney's fees will be construed as a judgment that plaintiff recover as attorney's fees the amount stated.

4. It does not appear that under the evidence the court erred in awarding the amounts allowed as temporary alimony and counsel fees.

Error from Superior Court, Sumter County; Louis L. Brown, Judge.

Suit for divorce by Mrs. D. K. Sellers against E. E. Sellers, Jr. Judgment was entered allowing temporary alimony and attorney's fees, and defendant brings error.

Affirmed.

R. L Maynard, of Americus, for plaintiff in error.

R. L Le Sueur, of Americus, for defendant in error.

BECK P.J.

In January, 1931, Mrs. Sellers filed her petition against E. E. Sellers, Jr., for divorce and temporary and permanent alimony, on substantially the same state of facts as is set forth in the petition in the present case. Pending this petition, the parties entered into a contract on January 27, 1931, providing for settlement of the claim for temporary and permanent alimony. At the May term, 1931, of the superior court the petition was dismissed on motion of the plaintiff. On or about February 1, 1931, the parties renewed their marriage relation, and continued to live together until May 1, 1931, at which time they separated again. On June 3, 1931, the parties entered into a contract, signed by each, by the terms of which temporary and permanent provisions were made for the support of the wife and child, providing for monthly payments, based on a proportionate share of the earnings of the husband. On October 22, 1931 the petition in the present case was sworn to by Mrs. Sellers. It was presented to Judge Louis L. Brown on October 26, 1931, before it was filed in the clerk's office. There was no suit pending at the time between the parties, either for divorce or permanent alimony. Judge Brown took jurisdiction of the petition, and on said date granted an order nisi requiring E. E. Sellers, Jr., to show cause before him at Macon, Ga., on November 12, why the prayers of the petition should not be granted and temporary alimony and expenses of this suit and counsel fees should not be granted as prayed. E. E. Sellers, Jr., demurred to the hearing of the petition under this order, on the ground that at the time of the granting the order nisi there was no suit pending in the court either for divorce or permanent alimony, the petition so presented to the court and on which the order nisi was granted not having been filed in the office of the clerk of the superior court (and was not filed until the next day). The court overruled the demurrer, and ordered that the bearing proceed under said order nisi. To this order the husband excepted and assigned error. On the hearing the husband relied upon the contract between the parties, dated June 3, 1931, and his inability to make payments thereon because of the fact that he had no employment and had no money with which to make the payments; and denied liability for attorney's fees, because of payment of fees in the first suit; and denied liability for either alimony or attorney's fees, because the first suit was dismissed by the plaintiff, after the second separation, and because she had condoned the acts of cruelty alleged in the second suit. The court, after considering the case, allowed alimony and attorney's fees, and E. E. Sellers, Jr., excepted.

1. The court did not err in overruling the ground of demurrer based upon the fact that at the time of the granting of the order nisi there was no suit pending in the court either for divorce or for permanent alimony. The petition was sanctioned and the order nisi granted on October 26, 1931, and the petition and order nisi upon it were filed in the office of the clerk of the superior court on the next day. The sanction of the petition and the granting of the order nisi were in accordance with the practice in such cases which has been observed in this state for many years, and has been recognized by this court in several decisions as the proper practice. Under the statute of this state, the wife may be granted temporary alimony whenever there is pending a suit for divorce or for permanent alimony. She may, at any regular term of court in which said suit is pending apply to the judge presiding, by petition, for an order granting to her temporary alimony pending the cause. Civil Code, § 2976. And in section 2980 it is provided that in suits for divorce the judge presiding may, either in term or vacation, grant alimony, or decree a sum sufficient for the support of the family of the husband dependent upon him, as well as for the wife's own support. There is nothing in this section that requires a ruling that the judge could not grant the order nisi referred to when the petition was presented to him and was duly filed on the following day. It is a well settled law in this state that, before temporary alimony can be allowed there must be either a pending suit for divorce or a pending suit for alimony; and, where there is...