Wood v. Wood
| Decision Date | 13 June 1928 |
| Docket Number | 6513. |
| Citation | 143 S.E. 770,166 Ga. 519 |
| Parties | WOOD v. WOOD et al. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Marriage imposes on husband legal obligation to provide maintenance for wife and abandonment of wife, and willful failure to provide maintenance and support creates liability on husband's part to wife, which is lawful demand, and, when legally enforced, is called "alimony."
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Alimony.]
Where husband and wife separated, and on same day husband executed and delivered deed to house and land to son, which covered all his visible property with or without consideration, to enable husband to put property beyond reach of claim which wife might have for support and alimony, wife could maintain petition in equity, under Civ. Code 1910, § 2986, against husband and son to recover temporary and permanent alimony to cancel deed, and to have receiver appointed to take charge of property and apply rents on alimony, though no divorce and no suit for temporary or permanent alimony was pending at time of execution of deed.
Petition by wife, alleging that husband deserted her and failed to furnish support for herself and child, that husband executed deed to house and land to son without consideration, in fraud of wife's rights and interest in property, stated cause of action against husband and son for recovery of temporary and permanent alimony, for cancellation of deed, and for receivership over property to apply rents on alimony.
Stepfather as such, is not under obligation to support children of wife by former marriage; but, if he takes children into his family in such way as to place himself in loco parentis, he assumes obligation of support and correlative right to their services.
Where stepfather and wife separate, and stepfather does not keep minor daughter of wife under his care, he is no longer under obligation to support such minor child, and, in application for alimony, wife will not be entitled to recover alimony for minor child living with stepfather as member of family before separation.
Under Civ. Code 1910, § 3416, existence of facts necessary to constitute valid exemption of property from sale need not affirmatively appear from face of schedule of exempt property filed with ordinary, but such facts must actually exist.
Where schedule of exempt property did not affirmatively show that house and land embraced therein exceeded in value $500, and it affirmatively appeared from petition to cancel deed to exempt property that property was valued about $400, court could not say as matter of law that exemption was void, on ground that value of property exceeded value in schedule, though petition alleged property and personalty cost $700, where petition further alleged deed to property was without valuable consideration, and it appeared that deed was executed some time after schedule.
Petition by wife for temporary and permanent alimony to cancel deed from husband to son of property embraced in schedule of exemptions, and for receivership to apply rents on property to alimony, held not subject to general demurrer, though homestead was void, on ground that it exceeded $500 in value when schedule was filed, where plaintiff did not assert any rights in homestead under petition.
Though generally all demurrers should be filed at first or return term of court, yet in actions of law or equity, when declaration does not set forth cause of action, demurrer or oral motion to dismiss in nature of general demurrer may be filed at any time before verdict.
Grounds of special demurrer to petition are not good, unless set forth in writing and filed at first term.
Error from Superior Court, Seminole County; M. J. Yeomans, Judge.
Petition by Maggie Wood against W. E. Wood and another. Judgment for defendant named, and plaintiff brings error. Reversed.
P. D. Rich, of Bainbridge, for plaintiff in error.
W. I. Geer, of Colquitt, for defendants in error.
Syllabus OPINION.
1. When husband and wife are living separately, or are bona fide in a state of separation, and there is no action for divorce pending, the wife may, in behalf of herself and her minor children, institute a proceeding by petition setting forth fully her case; and upon three days' notice to the husband, the judge may hear the same in term or vacation, and grant such order as he might grant were it based on a pending libel for divorce, to be enforced in the same manner together with any other remedy applicable in a court of equity, such as appointing a receiver and the like; and should such proceeding proceed to a hearing before a jury, they shall decree as provided in section...
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