Eskew v. Eskew

34 S.E.2d 697 | Ga. | 1945

1. Alimony is an allowance out of the husband's estate, made for the support of the wife when living separate from him. Code, § 30-201. "The object of alimony is the support of the children as well as the wife." Rochester v. Rochester, 124 Ga. 993 (53 S.E. 399).

2. The right to recover alimony depends upon a valid, subsisting marriage between the applicant and the man out of whose estate the allowance of alimony is claimed, and this is true even though it is claimed only for the support of a child. Morgan v. Morgan, 148 Ga. 625 (97 S.E. 675, 4 L.R.A. 925); Pennaman v. Pennaman, 153 Ga. 647 (112 S.E. 829); Foster v. Foster, 178 Ga. 791 (2) (174 S.E. 532); Allen v. Baker, 188 Ga. 696 (2) (4 S.E.2d 642); Kirby v. Johnson, 188 Ga. 701 (2) (4 S.E.2d 643); Durden v. Durden, 191 Ga. 404, 406 (12 S.E.2d 305).

3. To be able to contract marriage, a person, if a male, must be at least 17 years of age. Code, § 53-102. The marriage of a boy under that age, though not absolutely void, being voidable only and subject to ratification, must yet be treated as void, so far as alimony is concerned, unless and until it is so ratified by him after reaching such age. Smith v. Smith, 84 Ga. 440 (11 S.E. 496, 8 L.R.A. 362); Powers v. Powers, 138 Ga. 65 (74 S.E. 759); Morgan v. Morgan, 148 Ga. 625 (supra) Americus Gas Electric Co. v. Coleman, 16 Ga. App. 17 (4) (84 S.E. 493).

4. It appearing in this case that, at the time of the purported marriage, and at the time of the order granting alimony on application of the woman for the support of their child, the plaintiff in error was less than 17 years of age, the grant of such judgment against him was contrary to law, since there was no valid marriage to support it. Morgan v. Morgan, supra.

5. Whether the plaintiff in error may in some way be held liable for support of the child, he can not be subject to such liability through a claim for alimony. Code, § 53-104; Hall v. Hall, 141 Ga. 361 (80 S.E. 992); Hooten v. Hooten, 168 Ga. 86 (147 S.E. 373); Pace v. Bergquist, 173 Ga. 112 (2, 3) (159 S.E. 678); Hansberger v. Hansberger, 182 Ga. 495 (185 S.E. 810); Rozetta v. Banks, 183 Ga. 701 (189 S.E. 513).

(a) "The statutory provision that the father is liable for the support of his minor child, contained in the Civil Code (1910), § 3020 [Code of 1933, § 74-105], has no application to proceedings for alimony." Barlow v. Barlow, 161 Ga. 202 (2) (129 S.E. 860).

(b) The decision in Smith v. State, 42 Ga. App. 419 (156 S.E. 308), had no reference to alimony.

Judgment reversed. Jenkins, P. J., Duckworth, Atkinson, and Wyatt, JJ., concur.

No. 15205. JULY 3, 1945. Frank B. Eskew filed a petition in the superior court of Coweta County against Eva Emory Eskew, alleging: (1) The defendant is a resident of said county. (2) The plaintiff is a resident of said county and State, and has been for twelve months previous to the filing of this suit. (3) On October 16, 1943, the plaintiff and the defendant were married in said county, and lived together as husband and wife up to July 28, 1944, at which time the defendant caused the plaintiff to be arrested, charging him with abandonment, and since said time they have continuously lived separate and are now living separate. (4) The plaintiff was born on April 2, 1928, and at the time of said marriage, and at this time, he is under seventeen years of age, and by reason of his age, under the laws of Georgia he was unable to contract a valid marriage, and has elected at this time, while still under seventeen years of age, to present this petition for the purpose of declaring said marriage void. (6) The defendant is about twenty-three years of age and had been previously married. "Wherefore, petitioner brings this petition and prays that said marriage be declared `null and void,' and that he be granted a total divorce," and for process.

The defendant answered, admitting the allegations of paragraphs 1, 2, and 6, admitting the allegations of paragraph 3 "so far as it states that the plaintiff and defendant were married on October 16, 1943, and lived together as husband and wife until July 28, 1944, but the remaining portion of said paragraph is denied." Paragraph 4 was "neither admitted nor denied, but defendant demands strict proof thereof." Further answering, the defendant alleged that a child had been born as a result of said marriage, on September 1, 1944, and that she owns no property and has no means of support. The defendant prayed: 1. That the prayers of the plaintiff's petition be denied. 2. That she be granted alimony, both temporary and permanent, for the support of herself and the child. 3. That she be awarded custody of the child. 4. That she be awarded sufficient attorney's fees for the handling of this case.

On the hearing for temporary alimony, the defendant offered in evidence her verified answer, and "an oral stipulation by the parties in the presence of the court that the present weekly earnings of the plaintiff [were] . . $22, and that the defendant gave birth to a child on the first day of September, 1944." The plaintiff testified in support of the allegations of the petition as to his age, and that "she [the defendant] had been previously married and was divorced and had one . . child by that marriage. I am earning at the present time about . . $22 per week, and during the time we were together I had full control of my earnings and spent them as I saw fit. Afterwards and until now, I have control of my earnings and I give none of them to my parents except I do pay board."

The judge ordered the plaintiff to pay to the clerk of the superior court $5 per week commencing March 10, 1945, "and each week thereafter for the support of the child mentioned," and awarded custody of the child to the defendant until further order of the court.

The plaintiff excepted to the above judgment, assigning error thereon as follows: (a) The judge was without jurisdiction to render said judgment on the prayer contained in the defendant's answer for temporary alimony, there being no pending suit for divorce or permanent alimony, and there being no other proper legal basis for the order so made. (b) The relationship of husband and wife such as is recognized by law did not exist between the parties, by reason of the marriage being void ab initio. (c) No valid marriage existed between the parties. (d) A marital relationship did not exist at the time the action was instituted. (e) The judgment and order are contrary to law and the evidence in the case.