13 S.E.2d 349 | Ga. | 1941
Lead Opinion
Under the facts of this case there was no abuse of discretion in the judgment awarding temporary alimony pending the plaintiff's suit for divorce. The award was not excessive.
In granting or denying temporary alimony and attorney's fees to the wife pending a suit by or against her for divorce, the trial judge is vested with a sound legal discretion. Code, §§ 30-202, 30-203, 30-205. The evidence in the present case is not entirely satisfactory. It hardly disclosed such cruel treatment of the plaintiff as would have justified a verdict for divorce; yet it can not be said that her separation from the defendant was wholly unjustified *607
and amounted to a voluntary abandonment which would prohibit an award in her favor, under the rulings in Vinson v. Vinson,
The defendant contends also that the evidence showed the plaintiff to be impotent, and much of his argument is devoted to the establishment of the proposition that this fact renders the marriage void, entitling him to an annulment, rather than a divorce, and that accordingly there was no valid marriage on which to base an award of alimony. The proposition may or may not be sound; we do not decide. The premise on which it is based, to wit, that the evidence shows that the plaintiff is impotent certainly is not; and this is sufficient to dispose of the matter. Impotency denotes a state of permanent inability on the part of one of the parties to perform the complete act of sexual intercourse. 17 Am. Jur. 223, § 141. It is true that the defendant testified that "the plaintiff *608 was incapable of consummating the marriage relationship by intercourse," but it was not shown what the cause of this incapability was, and whether it was curable, incurable, accidental, or temporary. It might be inferred from the testimony of the plaintiff that the absence of sexual intercourse was perhaps due first to her maidenly reluctance and embarrassment and thereafter to the defendant's indifference. She testified: "Naturally I refused and made objections to having intercourse the first two or three times, but never resisted his efforts along that line. He then just quit, and made no further advances towards that feature."
The judge required the defendant to pay the sum of $5 per week, $2.50 of this amount to be applied to payment of $15 attorney's fees, and thereafter the entire amount to be paid to plaintiff. This amount was later reduced to $4 per week. The defendant admitted in his answer that he earned on an average $13 per week. It is clear that the award was not excessive.
Judgment affirmed. All the Justices concur, Atkinson, P. J.,specially.
Concurrence Opinion
I concur in the result but not in all that is said in the opinion, especially the citation therein of the case of Lefkoff v. Sicro,