Westberry v. Westberry, 8057.

• Decision Date: 15 July 1931
• Docket Number: No. 8057.,8057.
• Citation: 173 Ga. 42,159 S.E. 671
• Parties: WESTBERRY. v. WESTBERRY.
• Court: Georgia Supreme Court

173 Ga. 42

159 S.E. 671

WESTBERRY.

v.WESTBERRY.

No. 8057.

Supreme Court of Georgia.

July 15, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Wayne County; Eschol Graham, Judge.

Action by Mary Westberry against H. J. Westberry. Judgment for plaintiff, and defendant brings error.

Affirmed.

Gibbs & Turner, of Jesup, for plaintiff in error.

J. P. Highsmith, of Baxley, and D. M. Clark, of Jesup, for defendant in error.

ATKINSON, J.

A married woman instituted a suit for divorce, for permanent and temporary alimony, for custody of the children issue of the marriage, a girl of 16 years and a boy of 10 years, and for attorney's fees for prosecuting the suit. The ground of complaint was alleged cruel treatment consisting of continual "immoral" relations with other women, so conspicuous as to attract the attention of the children, cause public notoriety, and humiliate petitioner; failure to provide support for the family; assault by defendant rubbing his fist in the face of petitioner with a threat; and by false charges that petitioner was mentally deficient—all of which had wrecked petitioner's health and rendered it impossible to live longer in the marital relation. The petition alleged that the parties "are living separate and apart, " but it also appears that they occupy separate rooms in the same family dwelling owned by the defendant. At interlocutory hearing a general demurrer to the petition was overruled, upon which error was assigned. No ruling was made on the special grounds of demurrer. After hearing evidence the judge ordered: "That the defendant, H. J. Westberry, do pay the plaintiff, Mrs. Mary Westberry, as temporary alimony for herself and minor children, the sum of sixty dollars per month, payable as follows: $60 on the first day of August, 1930 and $60 on the first day of each month thereafter, pending the trial of said case, and the further sum of $200 counsel fees payable as follows, $100 on the first day of August, 1930, and $100 at the next term of said superior court; and that plaintiff also have, as temporary alimony pending the trial of said case, the use and rents of the dwelling-house and premises wherein plaintiff now resides, with the exclusive right to occupy, use, rent, and to receive the rents of said premises or any portion thereof during said time, taxes, insurance and upkeep of said premises to be borne by defendant; and said defendant is hereby restrained from in any manner interfering with plaintiff in the use or occupation of said dwelling and premises. That the custody of said minor children, to wit, both the...