Carter v. Carter

240 Ga. 597 | Ga. | 1978

Nichols, Chief Justice.

This is an appeal from the grant of temporary alimony and attorney fees. The appellant-husband filed suit for divorce, alleging the marriage was irretrievably broken. Appellee filed a counterclaim, admitting the marriage was irretrievably broken and prayed for alimony and property division. The trial court awarded the wife $100 per month as temporary alimony and $200 for attorney fees.

1. The first enumeration of error contends the trial court erred in excluding evidence of the wife’s adultery as a bar to alimony. Code Ann. § 30-205 expressly provides that on motion for temporary alimony, the merits of the cause are not in issue, although in fixing the amount of alimony the judge may inquire into the circumstances and . causes of the separation which made the alimony necessary. In Wilbanks v. Wilbanks, 238 Ga. 660, 662 (234 SE2d 915) (1977), this court held: "The husband contends that the trial court erred by refusing to allow evidence offered to show the wife’s adultery. No abuse of discretion has been shown. Rogers v. Rogers, 103 Ga. 763 (2) (30 SE 659) (1898); Johnson v. Johnson [236 Ga. 647 (225 SE2d 36) (1976)].” There is no merit in this enumeration of error.

Submitted January 10, 1978 Decided January 24, 1978. Blackburn & Bright, Roger J. Dodd, for appellant. Bennett, Wisenbaker & Bennett, Michael Bennett, Barry R. Chapman, for appellee.

2. The second, third and fourth enumerations of error contend the award of temporary alimony was contrary to the evidence, without evidence to support it and excessive as a matter of law.

The evidence adduced on the hearing showed the wife worked, earning approximately $623 per month, but had been laid off the day prior to the hearing; that the husband’s income consisted of $113 per month in social security benefits and that he recently had sold his tobacco crop but could not state the amount realized from this sale.

This court will not control the discretion of the judge in awarding temporary alimony and attorney fees unless there is a manifest abuse of discretion. Johnson v. Johnson, 236 Ga. 647, 648, supra.

The evidence in this case was in conflict; therefore, this court will not control the discretion of the trial court in awarding temporary alimony. There is no merit in these enumerations of error.

Judgment affirmed.

All the Justices concur.