Womble v. Womble, 20182

• Decision Date: 10 October 1958
• Docket Number: No. 20182,20182
• Citation: 214 Ga. 438,105 S.E.2d 324
• Parties: Johnnie L. WOMBLE v. Christine G. WOMBLE.
• Court: Georgia Supreme Court

Page 324

105 S.E.2d 324

214 Ga. 438

Johnnie L. WOMBLE v. Christine G. WOMBLE.

No. 20182.

Supreme Court of Georgia.

Oct. 10, 1958.

Syllabus by the Court

1. The trial judge did not err in sustaining demurrers to parts of the cross-action of the husband. There was no abuse of discretion in refusing to require the wife to file a reply to the remaining allegations of the husband's answer.

2. There was no abuse of discretion in the order requiring the husband to pay temporary alimony for the support of the wife and their minor child.

Christine G. Womble brought a petition against Johnnie L. Womble for divorce, temporary and permanent alimony, and custody of their minor child. The husband filed an answer and cross-action, and a motion to require the wife to reply to the allegations of the cross-action. The wife filed general and special demurrers to the husband's answer, and objections to the motion for replication. The motion for replication was denied. The general demurrer to the answer, ground 1, and special grounds 2 and 3, were overruled. Ground 4 through 8 of the special demurrers were sustained. Demurrers were sustained to certain paragraphs of the answer, but the court stated that the matters contained therein could be presented to the court on the question of temporary and permanent custody of the child. Temporary alimony was awarded in the amount of $12 per week for the support of the wife and the minor child, and $150 as attorney's fees. Temporary custody of the child was placed in the wife.

The bill of exceptions assigns error on the sustaining of the demurrers to the husband's answer and cross-action; the denial of his motion to require the wife to reply to the new matter set up in his cross-action; and the judgment awarding temporary alimony and custody of the child to the wife.

C. E. Hay, Thomasville, for plaintiff in error.

Alexander, Vann & Lilly, Roy M. Lilly, A. J. Whitehurst, Thomasville, for defendant in error.

HEAD, Justice.

1. The divorce action of the wife was brought on the ground of cruel treatment. The answer of the husband denied the allegations asserting a cause for divorce. Paragraphs 13 through 25 of his answer alleged matters which he asserts to be grounds for a divorce, and it is a part of this cross-action to which demurrers were sustained.

Paragraph 16 of the answer, to which demurrers were sustained, related matters transpiring prior to a former separation and reconciliation between the parties. In this paragraph the husband alleged in some detail the conduct of his wife (not asserted to be immoral) with a man she had met on a business trip. He asserts that he intercepted a letter written by his wife to this man (the letter being set out in the paragraph), in which she wrote to the man in endearing terms. In the subsequent discussions between the parties she promised to be a good wife to him, and he agreed not to break up the family. After this time he discovered that his wife was carrying on a flirtation with another man, and at one time he found his wife and this man in a booth together at a restaurant, and he told the man to leave his wife alone. Thereafter, on April 12, 1957, without any further quarrel between them, his wife abandoned him without just cause, and filed an action for divorce and alimony against him. He filed a cross-action, setting out the matters above stated and his wife sought a reconciliation with him. The divorce actions of both parties were withdrawn and cohabitation was resumed, upon the promise of the wife, both express and implied, that she would thereafter be a loyal and faithful wife, would not renew her flirtations or start any new flirtations, and would not renew the litigation between the parties.

In the subsequent paragraphs of the answer to which demurrers were overruled, it was alleged: A few weeks after the reconciliation, the wife began to call on the husband for money which he did not have, and she berated and belittled him for not being able to earn more than $250 per month. She went out at night alone and left him to take care of their child. On one occasion when he did not please her, she sought to strike him with a chair and another household article, and he avoided the blows only by seizing the chair and holding her. On March 24, 1958, she became ill, or feigned illness, and went to the home of her parents on the pretext of making them a visit, without any hint that she was permanently separating from him. He visited her ...