90 Ga. 687 | Ga. | 1893
Mrs. Campbell sued for a divorce upon the ground of cruel treatment, and in her petition prayed for permanent alimony. A cross-libel was filed by the husband, objecting to the grant of her petition and applying for a divorce in his own favor. The second verdict granted the wife a total divorce, but refused alimony; and a decree was entered by the court in accordance with the verdict. Mrs. Campbell moved for a new trial upon the grounds that the verdict was contrary to law and the evidence and contrary to the principles of justice and equity. The motion was overruled, and she excepted.
Upon the trial it was shown, and was undenied, that the husband was possessed of a considerable estate, amounting in value to several thousand dollars, and that he was a young man, stout, industrious and energetic, running a farm, saw-mill, etc. It was also shown that the plaintiff is a young woman now living with her father, to whose house she went after the separation from her husband, that she is in bad health and without property of her own, and according to the weight of the evidence she is an invalid and unable to work.
A wife is entitled to support by her husband until the right is forfeited by her own misconduct; and in some cases alimony has been allowed her even where the divorce was in favor of the husband. In all cases where the divorce is in her favor, permanent alimony, if properly applied for, must be allowed when it is shown that the husband is able to provide for her, unless it should appear that she has sufficient means of her own or that some settlement or provision has been made for her which will stand in lieu of it. As was said by Nisbet, J., in McGee v. McGee, 10 Ga. 483: “ After a decree for divorce which establishes the husband’s delinquency, a provision for the wife is the equitable consequence of his violation of his conjugal obligations. He being in the wrong, it would be a strange perversion of right to turn her adrift upon the charities of the world, he retaining her patrimonial inheritance; and if she had none, then it would be still flagrantly unjust, as well as morally impolitic, to deny to her that support which, whilst under coverture; religion and the laws accord to a wife at the hands of her husband.” The grant of alimony in such cases is not a mere matter of discretion. It was not so at common law, and our statutes have not rendered it so. It is true that at common law no alimony was allowed where the divorce was total, but this was for the reason that such divorces
In Bishop’s New Commentaries on Marriage, Divorce and Separation, vol. II, §§830, 831 (ed. 1891); it is said: “ The husband cannot abandon his obligations to his wife; therefore, where in any case the law authorizes her to live apart from him by reason of his ill conduct, it consequently requires him to maintain her while so living. Hence, a decree for separation in favor of the wife, where the funds which in cohabitation should support the husband and her, are vested in him, must, if so she prays, be attended by a decree for alimony.” And this rule he treats as applicable to cases of total as well
For the reason stated, the court below erred in refusing a new trial, and the judgment is Reversed.