134 Ga. 804 | Ga. | 1910
Lead Opinion
Hugh F. Davis brought suit against his wife, Marie A. Davis, for divorce on the ground of wilful and continued desertion for more than three years. She denied the allegation of the plaintiff, and, by way of cross-libel, alleged that the plaintiff had deserted her, had cruelly treated her, and had been guilty of adultery. She prayed that a divorce be granted to her, and that she have a judgment for alimony. The jury found for the plaintiff a total divorce. In the second verdict they declared: “We fix the rights and disabilities of the parties as follows, that neither of the parties be at liberty to marry again.” The defendant moved for a new trial, which was denied, and she excepted.
To permit this would be to attach a different condition to condonation from that which the law attaches, and to make forgiveness such only in name. Condonation is not revocable at will.
It ivas argued that section 2429 of the Civil Code, above cited, closes with the words, “and in all cases, the party sued may plead in defense the conduct of the party suing, and the jury may, on examination of the whole cage, refuse a divorce.” This statement follows certain provisions to the effect that “if the adultery, desertion, cruel treatment, or intoxication complained of shall have been occasioned by the collusion of the parties, and with the intention of causing a divorce, or if the party complaining was consenting thereto, or if both parties have been guilty of like conduct, or if there has been a voluntary condonation and cohabitation subsequent to the acts complained of, and with no,tice thereof, then no divorce shall be granted.” The last clause of the section (quoted first above) was not intended to destroy entirely the effects of the con-donation, so that a person, after condoning a ground for divorce and cohabiting with the offender, could at some later period, and with no further reason, desert the person so forgiven, persist in such desertion for the statutory period, and yet prevent a divorce by reason of the condoned acts. If there were a breach of the implied condition on the part of the person whose offense had
It has been decided by a number of courts, that, in the absence of any statute, if a divorce be granted to a husband against the wife, she is not entitled to alimony. This at times worked a great, hardship on the wife, especially under the common law, where the marital right of the husband attached to her property; and while it was said to be strict justice, it was also said that it sometimes drove the wife to starvation or a life of shame. The English Parliament adopted a practice, when granting to a husband a total divorce, of requiring him to make some provision for his wife. In England, and in a number of the United States, statutes have been enacted which authorize the courts to grant alimony to wives against whom judgments of divorce are rendered, or to require some other provision to be made by the husbands, when the courts deem it best. In some of these statutes the provision is express, in others the terms are general; but the courts have construed them to have the effect above indicated. Where, under the statute, discretion is vested in the court, it is to be exercised with care. In such jurisdictions it has been said to be the exception, rather than the rule, that the wife shall cause the matrimonial tie to be sundered by reason of her owvn conduct, and still have alimony; but, on the other hand, that the wife may have collaborated with her husband in acquiring the property held by the latter, that she may have greatly aided in establishing his fortune, that her conduct may not have been justifiable, so as to prevent a divorce, and yet the conduct of the husband may not have been exemplary. She may have no property, and be broken in health. In other words, under such statutes, while the law does not hold out to a wife who deserts the matrimonial domicile the promise of a right to alimony, but rather discourages divorces coupled with pecuniary claims upon the part of the party at fault, yet there may be circumstances which may render it just and proper that some alimony should bo allowed to the wife, although the divorce should be granted against her. In such instances the judge or the jury, as the case may be, in passing upon the question of ali
The question is, where does Georgia take position on this subject. At first the legislature granted total divorces. The first general rule in regard to the matter which the writer has found laid down is contained in the constitution of 1798 (art. 3, see. 9) where it was declared: “Divorces shall not be granted by the legislature, until the parties shall have had a fair trial before the superior court, and a verdict shall have been obtained, authorizing a divorce upon legal principles. In such cases, two thirds of each branch of the legislature 'may pass acts of divorce accordingly.” Marbury & Crawford’s Digest, 29-. By the act of December 5, 1806 (Cobb’s Digest, 224), it was declared that in all cases where the jury “shall determine in favor of a conditional divorce, they shall by their verdict or decree make provision, out of the property of which the husband may be possessed, for the separate maintenance and support of the wife and the issue of such marriage, which verdict or decree the said court shall cause to be carried into effect according to the rules of law, or according to the practice of chancery, as the nature of the case may require.” By amendment to the constitution divorces were made final and conclusive upon the concurrent verdicts of two special juries, authorizing a divorce upon such legal principles “as the General Assembly may by law prescribe.” The last of those amendments doubtless resulted from the decision in Head v. Head, 2 Ga. 191. See also Cobb’s Digest, 1123. By the act of February 22, 1850 (Cobb’s Digest, 226), the grounds of divorce, both total and partial, were declared. These are now embodied in Civil Code, § 2426 et seq. The constitution of 1861 contained the following provision: “The superior court shall have exclusive jurisdiction in all cases of divorce, both total and partial; but no total divorce shall be granted except on the concurrent verdicts of two special juries. In each divorce case, the court shall regulate the rights and disabilities of the parties.” Code of 1863, § 4974. Thus the entire subject of granting divorces and alimony became fixed by constitutional provision in the superior court, and ceased to be a matter of legisla
The construction of statutes of one State often throws little light on the proper construction of those of another, as ia slight difference in language may make a great difference in construction. But an examination of the statutes of other States and their construction by the courts shows that the trend of authority is in harmony with this decision. In Deenis v. Deenis, 79 Ill. 74, a
An application for temporary alimony is made to the presiding judge pending the litigation. He is vested with considerable discretion on the subject. It is sometimes granted where permanent alimony is ultimately refused, on the ground that the wife must be maintained and furnished reasonable opportunity for pressing hey suit or defending herself against charges made against her. If she wilfully deserts her husband without cause, this may furnish a ground for refusing temporary alimony, in the discretion of the judge; and in some cases, where the separation was clearly shown to have resulted from the adultery of the wife, or to have been without any shadow of excuse, and there were other circumstances of hardship in requiring the husband to thus support her, it has been held to be an abuse of discretion to allow her alimony. Vinson v. Vinson, 94 Ga. 492 (19 S. E. 898); Kendrick v. Kendrick, 105 Ga. 38 (31 S. E. 115); Williams v. Williams, 114 Ga. 772 (40 S. E. 782).
In this case the evidence of the wife tended to show bad conduct on the part of the husband'; that she had always helped support the family by sewing; that her eyesight was failing, and her
The jury might perhaps have found against the present plaintiffs application for alimony; but under the evidence the judge erred in declaring, as a. fixed rule of law, that, if the jury found a divorce for the husband on the ground of desertion, the wife would be entitled to no alimony.
Judgment reversed.
Dissenting Opinion
I am constrained to dissent from the proposition
announced in the second headnote to the opinion of the majority of the court. I understand the rule to be, that, in the absence of a statute to the contrary, permanent alimony will not be awarded a wife when a decree for divorce is rendered against her. 14 Cyc. 767; 2 Am. & Eng. Enc. Law, 118, (3). The provisions of sectiotís 2435, 2462, and 2478 of the-Civil Code, quoted in the opinion, when construed in pari materia, do not, in my opinion, change the rule. If, under the law of this State, a husband is not bound for necessaries furnished his wife if she be living in adultery with another man (Civil Code, § 2478), and if temporary alimony can not be awarded a wife where the separation has been caused solely by adultery on her part (Williams v. Williams, 114 Ga. 772 (40 S. E. 782)), I am unable to understand why the Imsband should be required to support her by the payment of permanent alimony when he procures a divorce from her because of her adultery, or because of her guilt in any other respect authorizing a divorce. Í am authorized by Justice Atkinson to state that he concurs in this dissent.