40 S.E.2d 54


15599.Supreme Court of Georgia.
OCTOBER 9, 1946.

On a hearing for temporary alimony, where the evidence is in conflict as to the causes and circumstances of the separation, the trial judge in the exercise of his discretion may grant, or refuse temporary alimony; and such judgment on review will not be disturbed, unless it appears that there has been an abuse of the discretion vested in the judge. In this case the undisputed testimony of the wife, and all legal inferences drawn therefrom, show that she abandoned her husband without just cause, and the court erred in granting temporary alimony and attorney’s fees.

No. 15599. OCTOBER 9, 1946.
Alimony. Before Judge Crow. Mitchell Superior Court. June 22, 1946.

The exception in this case is to a judgment granting temporary alimony and attorney’s fees.

Mrs. Wilma Howell Acree in her verified petition for temporary and permanent alimony against William G. Acree alleged: That

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they were married on June 5, 1945, and lived together as husband and wife until January 3, 1946. She gave the defendant no cause to complain of her, and the defendant without just cause abandoned her. Prior to their marriage he stated that it was his purpose to move to Jacksonville, Florida, but he has continued to live in Camilla and insisted on the petitioner living in Pelham and permitting him to visit her there, pay her expenses, and allowing her to use his automobile. His conduct has caused her to be looked upon as a mere mistress of the defendant, and robbed her of any chance of hereafter contracting a suitable marriage. The petitioner has no property, the defendant is a man of wealth, and able to make provision for her. He has not contributed to her support and, unless enjoined, he will dispose of his property and remove from the jurisdiction of the court. She prayed for process, temporary and permanent alimony, and that the defendant be enjoined from selling or disposing of his property. A schedule of property alleged to belong to the defendant was attached, showing his total worth to be $62,500. A rule nisi issued requiring the defendant to show cause why temporary alimony should not be granted.

The defendant was served and, before the hearing, filed his answer. He admitted the allegations as to marriage, but denied that he had abandoned the wife. He alleged that he had contracted marriage with her in good faith, and that through no fault of his she refused and still refuses to cohabit with him as man and wife. He denied that he is worth the amount shown in the exhibit to the petition. The defendant set forth in considerable detail his relations with the petitioner before and after marriage. He alleged: That her refusal to live with him in his home in Camilla and to cohabit with him as man and wife is the proximate cause of their separation; that the marriage was never consummated in fact; and that at the time of their marriage she intended to secure whatever property he had without performing the duties of a wife. He alleged that her conduct has caused him humiliation, pain, and suffering, and prayed that her claims for alimony be denied and that he be granted a total divorce.

On the hearing for temporary alimony both the petitioner and the defendant testified at length. The testimony showed the wife to be 22 years of age, and the husband 77 years of age. There was no evidence by any witness as to any cruel treatment. To illustrate

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the rulings here made, it is necessary to set forth only brief extracts from the testimony of the wife. On direct examination she testified in part as follows: “He wanted me to come and live in Camilla, and that was the first time be ever mentioned it. I didn’t agree to that. . . Since this case was filed, he asked me to drop the case, and go back to him and he would make me secure in his property and fix up the home out at my daddy’s and buy me new furniture and buy me a car. That was about three weeks ago. He bought the furniture. He didn’t come and live with me. He didn’t make any arrangements about securing me with his property. He didn’t buy the automobile. . . The only time he ever gave me any money to amount to anything was last September — that was $300 — at other times he only gave me $20 per week. He gave me a ring the first of December. He gave me a broach immediately after we were married.” On cross-examination she testified in part as follows: “When he came back he said he had a home in Camilla and I could come to Camilla and be the mistress of the house. He told me I could come up to Camilla and live. . . The contract was, we had agreed not to live in Camilla. That is the only place he offered me a home. . . After I filed the suit we met in Pelham and talked about going back together. . . He said I could go to my daddy’s and he could come and live with me. He told me he would live anywhere I wanted to live, and I told him we would have to buy some furniture. I did buy about $400 worth and he paid the bill. . . I went to Moultrie and bought some goods and gave a check on him. . . After that happened I said that I would get rid of the lawyers. . . I, my father, and Mr. Acree went to the office of . . one of my lawyers. . . At that time [my lawyer] in my presence and with my approval, told Mr. Acree that the conditions precedent to my going back and living with him would be to make me secure with his property. . . I remember Mr. Acree saying, `You are trying to keep us apart instead of helping us get back together.’ . . I would not let him come and live with me because he had only bought the furniture and had not made a deed to his property.”

The testimony of the husband supports the testimony of the wife, set forth above, as to the separation. He disputed her testimony that there was an agreement before their marriage that she

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would be a companion solely, and in other matters not material to the judgment to be rendered here.

Frank S. Twitty and O. B. McElvery, for plaintiff in error.

S. P. Cain and Robert B. Culpepper Jr., contra.

HEAD, Justice. (After Stating the foregoing facts.)

“Permanent alimony shall be granted in the following cases: 1. In cases of divorce, as considered in Chapter 30-1. 2. In cases of voluntary separation. 3. Where the wife, against, her will, shall either be abandoned or driven off by her husband.” Code, § 30-210. In this case the wife alleges: “Defendant, without any just cause, abandoned your petitioner and from that time until the present has continued to reside apart from her, and petitioner and defendant are now living in a bona fide state of separation.” Her petition does not contain any prayer for divorce and is therefore based on divisions 2 and 3 of the above Code section, and on § 30-213.

Section 30-205 provides that, on an application for temporary alimony, the merits of the cause are not in issue, but the court may inquire into the cause and circumstances of the separation. Where, as here, the court hears testimony at length of both the plaintiff and defendant, and such testimony, without conflict or dispute, completely negatives the allegations of the wife’s petition that she was abandoned by the husband, or that such separation is voluntary on the part of the husband, and on the contrary, such testimony establishes without dispute that the wife abandoned the husband without just cause, it is the duty of the court to deny temporary alimony and attorney’s fees.

In Sikes v. Sikes, 143 Ga. 319 (85 S.E. 193), it was held: “If the husband and wife are separated, he is generally bound to furnish her necessaries, but there are limitations upon this duty, and circumstances which will relieve him from liability to one who furnishes them, such as . . voluntary abandonment of the husband by her without sufficient provocation.” See also Fuller v. Fuller, 108 Ga. 256
(33 S.E. 865); Davis v. Davis, 145 Ga. 56 (88 S.E. 566) Brisendine v. Brisendine, 152 Ga. 745 (111 S.E. 22) Pace v. Pace, 154 Ga. 712 (115 S.E. 65); Durham v Durham, 156 Ga. 454, 457 (7) (119 S.E. 702); Perkerson v Perkerson, 157 Ga. 589 (122 S.E. 53); Hudson v. Hudson, 189 Ga. 410 (5 S.E.2d 912); Carver v. Carver, 199 Ga. 352
(2) (34 S.E.2d 509); Mullikin v. Mullikin, 200 Ga. 638
(38 S.E.2d 281).

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In her testimony before the trial court, the defendant in error undertook to explain her refusal to live with the plaintiff in error, in his home in Camilla, by saying that she had a contract that they were not to live there. She testified later that after the suit was filed her husband told her that she could live anywhere she wanted to, and that they made an agreement to live with her father, she stating that they would have to buy some furniture, which she testified the husband had bought at a cost in excess of $400. She then precluded any right of recovery for herself in this action with the statement: “I would not let him come and live with me because he had only bought the furniture and had not made a deed to his property.” Whether or not the wife’s frequent statements in her testimony that the husband was to make her “secure” in his property would support an action by her under the Code, § 53-401, is not here involved. Such statements and promises by the husband, if made and not complied with, do not amount to “cruel treatment,” and would not authorize abandonment of the husband by the wife.

Able counsel for the defendant in error recognize and quote the rule stated by this court recently in Mullikin v Mullikin, supra, as follows: “The Code, § 30-205, declaring that on application for temporary alimony the merits of the cause are not in issue, does not authorize the judge to award the wife temporary alimony or attorney’s fees where it appears without dispute that she abandoned her husband and refuses to live with him without just cause.” Counsel undertake to distinguish th Mullikin case from the present case on its facts. In th Mullikin case the husband did have to earn a living, while here the husband is not dependent on employment. The question at issue here, however, is not the financial standing of the husband, but whether or not the wife is justified in her position. In th Mullikin case the wife gave as her reason for not going with, and living with her husband, the fact that she was pregnant, that she wanted the care of her mother, and to be near the doctor of her choice. This was held not sufficient justification for the abandonment of the husband by the wife, in her refusal to go to the home which he had provided and to live with him. In the present case the wife gave as her reason for refusing to live with her husband in his home in Camilla her statement that they had contracted not to live in Camilla; and, as to her refusal to allow

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him to live with her under an agreement made after the suit was filed, we have her statement that “He had only bought the furniture and had not made a deed to his property.” The skilful argument of counsel is set at naught by the testimony of his client.

Shakespeare’s line that “Maids want nothing but husbands, and when they have them they want everything,” may, or may not, be supported by the testimony of the wife in this case. However, rules of law applicable to actions by the wife for alimony preclude any recovery by the wife when the undisputed testimony shows that she abandoned her husband without just cause.

Judgment reversed. All the Justices concur.