160 Ga. 200 | Ga. | 1925
Mrs. Preston brought suit against her husband for both temporary and permanent alimony. The case came on for a hearing on the question of temporary alimony and attorney’s fees, and the chancellor awarded the plaintiff the sum of $20 per month as temporary alimony and $100 as counsel fees; and exception is taken to this judgment. The defendant (now plaintiff in error) insists that the judgment was error, (1) because the separation was brought about by the petitioner, (2) because the plaintiff had taken to herself “more property than she brought into the wedlock,” (3) that she had accepted a house and lot in Atlanta in lieu of all alimony, and was living in one half the house and receiving $25 per month from the other one half, (4) because the petitioner had $2300.62 in bank, (5) because she was a strong woman physically, only 46 years of age, and with sufficient means to support herself during the pendency of the suit, (6) while the de
As said by Judge McCay in Carlton v. Carlton, 44 Ga. 216, “The granting of temporary alimony . . is specially in the discretion of the judge. The statute . . clothes him. with power to examine into the whole matter and to grant such alimony or to refuse, accordingly as from the circumstances of the separation and the ability of the parties he shall judge proper. His judgment is not even final, but is, at any time, open to modification and re-examination by him. The nature, too, of the case demands that the affair shall be specially in his control, since the very daily sustenance of the wife is involved in its prompt adjudication. If subject, for slight causes, to review in this court, it would be of very little value, since, in its very nature, it is only temporary, and the very interregnum it is intended to cover would be frittered away in litigation over it. For these reasons we feel it to be not
In subdivision (3) above stated plaintiff in error insists that the judgment rendered was erroneous, because the petitioner had accepted a certain house and lot in the City of Atlanta in lieu of all alimony. This contention in nature and effect is a plea of estoppel. But the plaintiff denies making any such agreement. A jury upon a final hearing may sustain the plea of the defendant. If the evidence had required it, the chancellor might have refused to award alimony, on the ground that the plaintiff had concluded herself from asking for alimony. However, the writing in the record signed by the defendant does not mention the subject of alimony, and will require explanation, if there be evidence admissible and competent for that purpose, upon the final hearing. The exception
Grounds (4), (5), (6), and (7) all involve the same question: did the judge abuse his discretion in the amount of the allowance or likewise abuse it in granting any alimony at all ? According to the evidence before the court, it is undisputed'that the plaintiff had $2300.62 in the savings department of a named bank, but there is no evidence that she was “a strong woman physically.” The only evidence touching on her physical condition was that she had received damages at some time in the past for a physical injury, and that she was 46 years old. As the trial judge saw her, he was in a better position to determine the condition of her health than are the members of this court, and we can not say that as to this the judge abused his discretion. The evidence does not sustain contention (6) of the plaintiff in error in his brief, except that the defendant was 60 years old. It is true that he testified that he was subject to rheumatism and had had trouble, pain, and expense on account of his teeth, and had lost some time, but he testified that he was still earning $5.25 per day. The record does show, as set out in subdivision (7), that he owns a house and lot worth $2700 and an automobile; and so far as appears from the record this is the only property the defendant owns, except household and kitchen furniture in the house in which he lives, the amount and value of which was not disclosed in the court below. Under the evidence in the record the trial judge was not required to find that “he is an old and feeble man and she is a young and vigorous woman.” The judge was authorized to find from the evidence that the wife, as she had a right to do, saved considerable money from the sums allowed to her for necessary family expenses, and in that way had been able to accumulate the savings shown by the pass-book of the bank, but at the same time the evidence authorized him to find that otherwise the plaintiff was worth less money than she was when she married the defendant. Under the plaintiff’s statement as to the purchase of the house in which
Judgment affirmed.