167 Ga. 98 | Ga. | 1928
Lead Opinion
Upon a review of the petition as set forth in the settlement of facts we are of the opinion that the original petition for divorce filed by the husband on the ground of cruel treat-
The first question raised by the demurrer to the wife's application for alimony, as stated by counsel for the plaintiff, is whether an increase in the earnings and property of the husband after the separation are material or relevant in the suit for alimony, it being insisted that there is “no right of alimony in the wife to take earnings subsequent to the date of the separation, except such as may be required to furnish the- actual necessities of the wife,” and the schedule of property set forth in the petition for divorce showing that the husband's property at the date of the separation was more than ample for furnishing actual necessaries. Stated briefly, the point raised is whether, in considering an application by the wife for alimony, the court shall take into consideration the property and earnings of the husband at the time of the trial, or is he restricted to the financial condition of the husband at the time of the separation. Counsel for the husband insist that the wife has no right of alimony in the property or earnings of the husband acquired after separation, and cite the ruling of this court in the present case (162 Ga. 349, 133 S. E. 842), in support of their contention. When the case was here before, the husband excepted to the judgment of the trial judge ordering the husband to pay to the wife the sum of $300 per month, and that the wife have the use of the home of the husband free of rent, until the further order of the court, with -an allowance of $500 as counsel fees for the wife's attorneys,- upon the ground -that the judgment was contrary to law. The court held that “In those circumstances we can not hold that the- judgment of the court awarding alimony and attorney's fees is. contrary to law, and that the trial judge abused his discretion-in the grant of temporary alimony and counsel fees; the court in effect having awarded the wife temporary alimony in the amount which the husband had been voluntarily paying her prior to the filing of his libel for divorce, and the amount awarded her as attorney's fees not being so excessive as to amount to an abuse of the discretion vested in the trial judge under the law.” This court further ruled: “The judgment of the court below if
The plaintiff excepts to the overruling of his demurrers addressed to paragraphs 22, 23, 24, 28, and 33 of the wife’s cross-action, which allege acts of misconduct by the husband and intimacy with women in 1919 and 1920. He insists that these paragraphs of the cross-action should have been stricken upon demurrers based upon the ground that such allegations are immaterial and irrevelant, and that they set forth acts which, i| done, are shown to have been condoned by the defendant, she after these dates having cohabited with the plaintiff, and at the time of the separation there was no repetition of the offense. We think the court properly overruled the demurrers, for the reason that condonation is a question of fact, and the allegations of the cross-action are not such as to imply condonation and only a conditional condonation dependent upon the penitence and reformation of the husband can be inferred from the language used in the cross-action. Furthermore, where the ground of divorce relied on is cruel treatment, the jury may grant either a partial or a total divorce; and since the defendant is praying that a divorce be denied the petitioner, the conduct of the husband might be very relevant and material in leading the jury to determine whether in this case a total divorce should be granted with or without the right accorded the plaintiff to marry again, or whether he should only be granted a partial divorce, in which event the right to remarry would be altogether precluded. Moreover, it may be said as to the demurrers to these
In the eighth paragraph of the defendant’s cross-action it is alleged: “This defendant shows that so long as she was struggling side by side with the plaintiff to gain together a foothold in the business world, plaintiff was kind and attentive and faithful to her; but when prosperity came, plaintiff forgot the faithful wife who had sacrificed her ease and comfort to help him climb the ladder of success, turned his back to the woman who had stood by him in adversity, and went off after the society of dissolute women on whom he lavished the money which defendant had helped him to make and save, and this plaintiff did without the shadow of an excuse or justification.” The plaintiff demurred to this paragraph, on the ground that it did not allege where, when, or with whom such conduct arose or was committed. This demurrer was properly overruled by the court, because, though the charge in this particular paragraph is in general terms, it is quite plain that this paragraph is but a prelude or introduction of more specific statements of escapades with named women set forth in succeeding paragraphs.
The rulings in headnotes 5, 6, and 7 do not require elaboration.
Judgment reversed.
Concurrence Opinion
I concur in the result as to the rulings announced in the 1st, 2d, 4th, and 5th headnotes, but not in all of the reasoning contained in the corresponding divisions of the opinion. I dissent from each of the rulings as indicated in the remaining headnotes.
Dissenting Opinion
I dissent from the ruling in the 6th headnote, but concur in the rulings in the other headnotes.