157 Ga. 841 | Ga. | 1924
Neva C. Wilkes sued her husband for a total divorce, and for permanent alimony and attorney’s fees. The suit, when filed, based the action upon desertion for a period of three years. The petition was subsequently amended by alleging cruel treatment on the part of the husband as an additional ground. Two verdicts were rendered at separate terms of the court, granting a total divorce. The second verdict, in addition to granting a total divorce to the plaintiff, contained the following: “We find no alimony, and relieve the marital disabilities of the defendant, Jake Wilkes.” The plaintiff, being dissatisfied, filed a motion for a new trial on the general grounds, the particular complaint being that, while the jury had in two separate verdicts found in favor of the plaintiff and against her husband, on the last trial the jury had refused to award any alimony. The motion for new trial was overruled, and she excepted.
The evidence was conflicting as to the cruel treatment and the cause of the separation, but there was no dispute as to the fact that the parties had lived separately and apart for three years previously to the filing of the suit. The evidence of the wife tended to prove all of the allegations of her petition. The character of the evidence in regard to the cruel treatment renders it inappropriate for reproduction in this statement to be printed in the records. It will suffice to say that if true (and upon this question we express no opinion), the conduct of the husband would afford ample basis for a verdict in behalf of the wife. The evidence of the defendant, as contained in the record before us, is exceedingly brief, and is as follows: “It is all untrue as set out in plaintiff’s petition. She wants a divorce, and I want one. I have no property, and only
The case of Campbell v. Campbell, 90 Ga. 687 (16 S. E. 960), involved a principle of law that is controlling in this case. The opinion in the case, written by Mr. Justice Simmons, bears evidence of a thorough consideration of the subject. The headnote is as follows: “Where a total divorce is granted upon the application of the wife, permanent alimony generally follows as a matter of right. Hence, where a wife sued for a total divorce on the ground of cruel treatment, and in her petition prayed for permanent alimony, and the evidence showed that the wife had no separate estate or means of support and that the husband was able to support her, a verdict granting the divorce but denying alimony was contrary to law in so far as it denied alimony.” It appeared in that case that the husband owned considerable property, and in this respect the case differs from this case. In this case the wife testified that the husband was a strong young man capable of earning a good support for himself and the plaintiff. The defendant swore to the contrary. Unless the husband was unable to contribute any sum whatever as alimony, the evidence on that question would only affect the amount. It does not appear from the evidence that she has any means of support of her own. We quote from the opinion in the Campbell case, as follows: “A wife is entitled to support by her husband until the right is forfeited by her own misconduct; and in some cases alimony has been allowed her even where the divorce was in favor of the husband. In all cases where the divorce is in her favor, permanent alimony, if properly applied for, must be allowed when it is shown that the husband is able to provide for her, unless it should appear that she has sufficient means of her own, or that some settlement or provision has been made for her which will stand in lieu of it. As was said
Hnder the principles of law ruled in the Campbell case, supra, applied to the facts of this case the verdict refusing alimony to the wife is contrary to law and the court erred in refusing a new trial. The judgment of the court below granting a total divorce is affirmed; but it is reversed so far as it refuses to grant the plaintiff permanent alimony, with direction that on the next trial the issue be confined to the amount of permanent alimony to be awarded the plaintiff.
Judgment affirmed in part and reversed in part, with direction.