27 S.E.2d 393 | Ga. | 1943
1. The assignment of error on exception pendente lite to the overruling of plaintiff's demurrer to defendant's application for temporary alimony, counsel fees, and other equitable relief, not having been argued in the brief of the attorneys for plaintiff in error, is treated as abandoned. City of Hawkinsville v. Williams,
2. A separation agreement between husband and wife, under which the wife accepts a certain sum of money, paid by the husband concurrently with the execution of the agreement, in settlement of all claims against the husband for temporary and permanent alimony, counsel fees, dower, and year's support, becomes null and void and is set aside as to the husband's liability to support and maintain the wife upon their subsequent voluntary cohabitation.
(a) In such a case the contract of settlement would not bar a wife's right to temporary and permanent alimony and counsel fees upon their separation subsequently to the resumption of the marital status.
(b) Nor would it be necessary as a prerequisite for the wife to restore or account to the husband for the unused portion of the money remaining in her hands, if any, which she had received under the contract of settlement, before applying to the court for alimony upon a separation subsequently to the resumption of the marital status; but the court should take into consideration, as in all such cases, the wife's separate estate, if any, in fixing the amount of alimony.
The wife contended, and produced evidence to the effect, that she and her husband, after the execution of the agreement above set out, lived separate and apart for about one year, but that she returned home in November, 1941, and she and her husband resumed cohabitation as husband and wife and made their home in the plaintiff's apartment, where they continued to live until January, 1943, when she went to Florida. Upon her return home on February 10, 1943, she was served with the divorce suit which had been filed on January 19, about the time of her departure for Florida. In addition to the oral evidence produced at the hearing, the parties entered into the following stipulation. "It is stipulated that while the foregoing is a summary of the evidence, sufficient, however, to present the issues, that the evidence submitted to the court was sufficient to authorize the allowance of alimony and attorneys' fees, unless, as plaintiff in error contends, the contract of November 23, 1940, between the parties precludes the wife from recovering under the facts and law, notwithstanding that after the separation, which occurred November 23, 1940, and the execution of the contract, which contract had been determined upon, the judge was authorized under the evidence to find that the parties became reconciled and lived together as man and wife from November 21, 1941, to the date of the filing of the action for divorce." *697
The judge awarded to the wife $1800 per annum as temporary alimony, and $2000 as attorneys' fee. The husband excepted, assigning error upon this order, and on the ruling excepted to pendente lite, as to temporary alimony and attorneys' fees.
1. Headnote 1 requires no comment.
2. It is conceded in the stipulation that the judge was authorized by the evidence to find that the parties, after the separation agreement, had become reconciled, had voluntarily resumed cohabitation as husband and wife, and had lived together as such from November 21, 1941, until January 19, 1943, that being the date of the last separation. Therefore the only question presented is whether the separation agreement was annulled and set aside by virtue of the acknowledged subsequent voluntary cohabitation of the husband and wife. If in these circumstances the agreement became null and void, the ruling of the judge should not be disturbed. Counsel for the plaintiff state in their brief that the application for alimony and attorneys' fees was tried and determined upon the theory that the contract of November 23, 1940, was annulled and set aside, under the Code, § 30-217. They concede the subsequent voluntary cohabitation and reconciliation; but they contend. (1) that such cohabitation did not destroy or annul the contract; (2) that it continued binding on the defendant, and precluded her as a matter of law from recovering temporary alimony or attorneys' fees. There can be no doubt that when an estranged husband and wife reconcile their differences and voluntarily resume cohabitation as husband and wife, they have by such acts restored their original marital status as fully as if the separation had not occurred, and with it they assume all the duties, obligations, and liabilities imposed by law incidental to the relation, including the husband's obligation to support and maintain his wife. The husband is the head of the family. Code, § 53-501. He is bound to support and maintain his wife. § 53-501. These rights and liabilities of the husband remain in effect during cohabitation of the husband and wife, and until there has been a separation and the husband is relieved in some manner provided by law, such as divorce, contract or deed of separation, or by decree of court. The Code, § 30-217, provides that "The subsequent voluntary cohabitation of the husband and wife shall annul and set aside all provision made, either by deed or decree, for permanent alimony. The *698 rights of children under any deed of separation or voluntary provision or decree for alimony shall not be affected." The plaintiff contends that this section does not apply to an executed separation agreement in which the husband secures his release from liability for permanent alimony in consideration of the payment of a sum of money, or other personalty, but applies only where permanent alimony has been decreed by a court, or provided for in a deed conveying land. It thus becomes necessary to determine the applicability of this provision of the Code to contracts settling permanent alimony otherwise than by deed or by decree. The plaintiff attempts to justify this contention by asserting that the word "deed" does not refer to a contract settling permanent alimony, but that in a strict sense it refers only to deeds conveying land. This Code section, along with other sections set out in chapter 30-2 of the present Code, first made its appearance in the Code of 1863, § 1698. In that Code, § 1694 (1933, § 30-211), it is stated that the husband, in case of voluntary separation or where the wife, against her will, shall either be abandoned or driven off by her husband, "may voluntarily, by deed, make adequate provision for the support and maintenance of his wife, consistent with his means and her former circumstances, which shall be a bar to her right to permanent alimony." The word "deed" as used in the section last referred to, and as used in § 30-217, certainly was intended to have the same meaning and import, since these sections were by the codifiers collected, framed, and placed in the Code at the same time.
While we have been unable to find where this court has ever defined the word "deed" as used in these sections, it has referred to "contracts" as provided by § 30-211. Hayes v.Hayes,
Counsel for the plaintiff contend that before the agreement could be annulled and set aside as provided by the Code, the wife must first restore to the husband what benefits she received under the contract. It has many times been held that an order for temporary alimony is avoided by a reconciliation under the authority of this Code section. Weeks v. Weeks,
Temporary alimony is allowable to a wife during the pendency of action for divorce at the instance of either party, or suit by the wife for permanent alimony. Code, § 30-202 ; Banks v.Banks,
Affirmed. All the Justices concur.