169 Ga. 593 | Ga. | 1929
Carolyn M. Apperson filed her libel for divorce against Lawrence L. Apperson, returnable to the November term, 1928, of the superior court. In her original petition she did not claim alimony. By an amendment filed on May 2, 1929, she alleges that a minor son of the marriage is in her care and custody, that she has no occupation or means of earning a livelihood for herself and the minor son, that she is entitled to temporary and permanent alimony for the support of herself and the minor child, and to attorney’s fees; that on October 10, 1928, her husband entered into a contract with her, agreeing to pay her certain sums as alimony for the support of herself and the minor child, and that she attaches to her amendment a copy of said contract as exhibit A. She prays that she have custody of said minor child, .that she be granted permanent and temporary alimony for the support of herself and said minor child, and attorney’s fees for the prosecution of her action for divorce, and that the contract between her and her husband be made the judgment of the court in
1. Where prior to or pending a libel for divorce the parties between themselves by contract agreed upon specified sums to be paid to the wife at stated intervals by the husband, for the support and maintenance of the wife and their minor son, it was error for the court to* make provision by way of temporary alimony for the support and maintenance of the wife and minor child, in the absence of an allegation in the wife’s pleadings of the failure of the husband to pay the amounts of alimony provided for in said contract, or any proof of such failure, and in the absence of any allegation in the wife’s amendment to her libel or other pleading that the
2. The court erred in overruling the demurrer to the wife’s amendment to her petition; and this ruling renders nugatory the judgment of the court awarding temporary alimony for the support of the wife and her minor child.
Judgment reversed.