Opinion
15075.
MARCH 7, 1945.
Alimony, etc. Before Judge Davis. DeKalb superior court. October 13, 1944.
H. W. McLarty, for plaintiff in error.
Pearl Burnette and B. L. Milling, contra.
1. Where a husband sued his wife for a divorce on the ground of cruelty and she filed an answer and cross action denying the alleged cruelty, and praying for permanent and temporary alimony and for an injunction, but not seeking a divorce, the court had jurisdiction when the case as thus made was reached for trial, to limit the trial to the husband's suit for divorce, and to continue the wife's cross-action for permanent alimony to a subsequent term of the court. Code, § 3-510; Lacher v. Manley, 139 Ga. 802 ( 78 S.E. 188); Evans v. Evans, 191 Ga. 752 ( 14 S.E.2d 95); Boone v. Boone, 192 Ga. 579 (3) ( 15 S.E.2d 868); Cox v. Cox, 197 Ga. 260 (3) ( 29 S.E.2d 83).
2. Where, under the circumstances above indicated, the jury trying the sole issue as to divorce rendered a verdict against the husband denying the divorce prayed, such verdict did not terminate or abate a judgment for temporary alimony which had been entered on the wife's application therefor before the trial of such divorce issue. See, in this connection, the Code, §§ 30-209, 30-210; Mitchell v. Mitchell, 97 Ga. 795 ( 25 S.E. 385); Bishop v. Bishop, 124 Ga. 293 ( 52 S.E. 743); King v. King, 151 Ga. 361 ( 106 S.E. 906); Lee v. Lee. 154 Ga. 820 ( 115 S.E. 493).
3. The instant case is distinguished by its facts from the following cases cited for the plaintiff in error: Stoner v. Stoner, 134 Ga. 368 (4) ( 67 S.E. 1030), wherein the prayer for alimony was incidental to a suit for divorce by the wife herself; Mason v. Mason, 151 Ga. 468 ( 107 S.E. 331), where the wife was granted temporary alimony only as incident to a suit for divorce by the husband, she not having prayed for permanent alimony or filed a cross-action; Brisendine v. Brisendine, 152 Ga. 745 (2 a) ( 111 S.E. 22), in which it was held that the award of temporary alimony pending the wife's own previous suit for divorce terminated with the conclusion of that action against her; Pace v. Bergquist, 173 Ga. 112 ( 159 S.E. 678), in which temporary alimony had been allowed only "until further order of the court," and it was held in effect that the husband was not liable for installments accruing after the wife obtained a decree of total divorce, severing the matrimonial relation and containing no reference to alimony.
4. Under the preceding rulings, the judgment overruling the motion to dismiss the rule for contempt for failure to pay temporary alimony as awarded was not erroneous for any reason urged.
Judgment affirmed. All the Justices concur.
No. 15075. MARCH 7, 1945.
On May 29, 1942, W. C. Camp sued his wife, Mrs. Susie Camp, for divorce on the alleged ground of cruelty. He alleged also, among other things, that his wife frequently telephoned his employer and friends, making false charges against him, and he prayed for injunction. On June 9, 1942, Mrs. Camp filed an answer, denying cruelty on her part, and alleging cruelty on her husband's part. She also prayed for temporary and permanent alimony and attorney's fees, and for an injunction to restrain her husband from encumbering or disposing of any of his property. She did not pray for a divorce. The petition alleged, and the answer admitted, that the parties were living in a bona fide state of separation. On June 26, 1942, the judge heard her application for temporary alimony and attorney's fees, and awarded $70 per month temporary alimony, and $75 attorney's fees. On March 7, 1944, the jury returned a verdict "for the defendant." On March 10, 1944, the following decree was entered and signed by the judge: "The verdict of the jury in the within stated case is hereby made the decree of court as to the divorce case, the question of divorce only being submitted to the jury, under the instruction of the court that the question of alimony was not submitted to them at this first hearing. The jury having before them no other question for their determination except the question of granting or refusing a divorce to the plaintiff, and the question of permanent alimony having not been passed upon by the jury, it is ordered by the court that the defendant's petition for permanent alimony be heard at any subsequent term of this court."
In September, 1944, Mrs. Camp complained that her husband was in default $125 in the payment of temporary alimony, and at her instance a rule for contempt was issued. Her husband responded by a motion to dismiss the rule, upon the following grounds: 1. Said temporary alimony awarded in said case terminated when the jury rendered a verdict denying a divorce on an application for first verdict, and therefore all proceedings thereafter are nugatory. 2. The order and decree in said case rendered on March 10, 1944, providing that the permanent alimony continue for a hearing at some future time was and is without legal sanction, and should be held void and ineffective or set aside. 3. For the above reasons, the said motion for contempt should be dismissed, and the order continuing the permanent alimony should be vacated and set aside. The motion was overruled, and the husband excepted.