Opinion
14567.
JULY 8, 1943.
Alimony. Before Judge Pratt. Banks superior court. March 29, 1943.
Hamilton Kimzey and Herbert B. Kimzey, for plaintiff in error.
J. B. G. Logan, contra.
1. "On application for temporary alimony, the merits of the cause are not in issue, though the judge, in fixing the amount of alimony, may inquire into the cause and circumstances of the separation rendering the alimony necessary, and in his discretion may refuse it altogether." Code, § 30-205. The discretion of the trial judge in allowing or disallowing temporary alimony will not be controlled unless that discretion is shown to have been flagrantly abused.
2. On the hearing of an application for temporary alimony, pleadings sworn to from the knowledge of the affiant, and not from his information and belief, may be considered in evidence without formal introduction. Under the evidence, including the response of the husband, sworn to from his own knowledge and not from his information and belief, to the application of the wife for temporary alimony, a marked conflict was presented as to the cause and circumstances of the separation of the parties, and it can not be said that the refusal of the trial judge to allow temporary alimony was a flagrant abuse of discretion.
3. The contention that the judge erred in refusing to allow counsel fees is without merit, inasmuch as it is shown by the record that the court merely postponed, until the hearing of the divorce case on its merits, any ruling on the question of attorney's fees.
No. 14567. JULY 8, 1943.
STATEMENT OF FACTS BY DUCKWORTH, Justice.
Harold Moss filed, on February 4, 1942, a suit for divorce against Marie White Moss, alleging that he and the defendant were married on January 18, 1942, and that on January 27, 1942, they separated because of her pregnancy at the time of the marriage, which fact was then unknown to him. The defendant acknowledged service, and in writing consented for the first verdict to be taken at the appearance term; and without any contest the first verdict was so taken on March 16, 1942. On November 9, 1942, she filed a sworn plea and answer, admitting that she was pregnant at the time of the marriage, but alleging that the plaintiff was the father of the child, having had sexual intercourse with her numerous times after they became engaged to marry more than two years previously to the marriage. She alleged that she had not had sexual intercourse with any other man; and she prayed that he not be granted a divorce, that the custody of the child, then born, be awarded to her, and that she be granted permanent alimony for the support of herself and the child.
The case was continued at the November term, 1942; and on January 21, 1943, she filed a sworn petition for temporary and permanent alimony, alleging that she had no property or means of support with which to contest the divorce action or to provide the necessities of life for herself and the child; that in order to defend against the divorce action she had employed named counsel, and had no funds with which to pay for their services; and she prayed that temporary alimony and counsel fees be allowed to her as from February 4, 1942, the date of the filing of the divorce action, and that she have such other relief as might be just in the premises. To this application the plaintiff in the divorce action filed a response, sworn to from his knowledge and not from his information and belief, alleging as follows: The defendant was pregnant at the time of her marriage to him, and he did not then know of such fact, and he knew nothing of it until she informed him of her condition after the marriage, at which time she named as the father of the child a young man who is now in the armed forces of the United States government, and whose name will be disclosed if directed by the court. At the time of the marriage he was mentally incapable of entering into a contract of marriage, being then sick and weak from illness and derangement caused by measles; and the defendant came to the home of his parents, together with her first cousin once removed, and superimposed her services upon the family while his mother was ill and the plaintiff in a state of convalescence and without mental capacity to contract, and procured the marriage, the defendant being then three or four months with the child. She induced him to go through with a marriage ceremony on January 18, 1942, and on January 27, 1942, informed him that she was pregnant with child by another person, and confessed to have cohabited with such person and others; and the plaintiff, knowing that he was not the father of the unborn child, having had no sexual intercourse with her before the pretended marriage, took her back to her father at her request, and from that day until November 9, 1942, he did not have any knowledge that she even claimed that he was the father of the child. At no time has she communicated with him and requested any support for herself or her child. He has no property, trade or profession, and his mental capacity, when undisturbed and at its best, is so limited that he can not earn a living for himself, but has to depend upon his father and his mother for his own living, rendering to them whatever services he can. He was overreached, overpersuaded, defrauded, and induced to enter into the marriage with her, reposing confidence in her as a relative and one that had come to the assistance of his family in sickness; and he did not know that he was being used to cover up the misdeed and bad conduct of the defendant and to relieve another person as the rightful father of her illegitimate child.
Hearings on the application for temporary alimony were had on January 30, 1943, and February 13, 1943. Mrs. Moss introduced evidence by affidavit of herself, substantially sustaining the allegations of her application for temporary alimony. An aunt testified, that she had known the plaintiff all of his life; that he was an able-bodied young man, physically and mentally capable of holding a job, and making from $2 to $6 per day as a laborer at some defense plant; that she had seen him farming during the past several years, and knew of her own knowledge that he was physically and mentally able to work and did work; that the first time his intelligence was ever questioned was after the institution of his divorce action and after the defendant had filed her answer; that she and the defendant had visited the parents of the plaintiff, and were urged to spend Thanksgiving day with them in November, 1941, and did, and they spent the entire week at Christmas time with them at the insistence of the plaintiff's mother; and that the mother told her that the plaintiff, her son, and the defendant were going to get married, and she did not see what they were waiting for, and that she wanted them to marry before the baby was born, and stop talk in the settlement.
There was testimony by affidavit that the defendant had been seen, after the time she said she became engaged to the plaintiff, in an automobile at about midnight on the highway with a named man; testimony by affidavit that in June or July, 1941, she had been in an automobile with three men who were considerably under the influence of intoxicants and were boisterous and profane, the car being in a ditch, and that she did not get out of the car when it was back in the road.
Mrs. Inez Moss, an aunt of the defendant, testified by affidavit, that most of the time during the first part of 1941 and until some time in October, 1942, the defendant resided with her, and during that time the plaintiff never called on her except with other boys, and the affiant never suspected that there was a love affair between them; that during the first eight or nine months of 1941 she seemed to be very popular with a number of boys, and many came to see her, and she frequently went off with them, and her conduct and association with the young men and the late hours that she kept with them away from the home until unusual and improper times at night caused the affiant to request the defendant to return to the home of her parents.
Mrs. H. B. Moss, the mother of the plaintiff, testified by affidavit, that while she and the plaintiff were sick with measles about the first of the year 1942 the defendant and her aunt, Mrs. Ophelia Moss, came to her home, remained several days, and then returned on January 18, 1942; that at that time the plaintiff and the defendant were absent for some time, and on their return informed her that they had been to Habersham County and were married; that the defendant remained at her home two days and nights and went away, and after a lapse of two days and nights they returned, remained three days, and then went away; that her son had never been a normal, bright child, and had been more or less sheltered by his parents on account of his mental incapacity; that at the time of the marriage he was very weak mentally and did not have sufficient mental capacity to contract marriage or to enter into any kind of contract; and that never before her illness above mentioned had she seen or heard of the plaintiff and the defendant going together.
H. Baker Moss, the father of the plaintiff, testified, that although he resided within two miles of the home of the defendant she had never visited in his home until about the first of the year 1942, and at that time the plaintiff and his mother were sick with measles; that the plaintiff has never been a normal, bright boy and has never been able to work for himself and accumulate, but has always worked at home with him, and has no property, being given small amounts of money at intervals; that on or before January 18, 1942, and for some time theretofore, the plaintiff was very weak mentally and physically, and did not have capacity to enter into any kind of contract.
One of the defendant's counsel testified, that counsel had not been paid anything on fees or expenses, and believed that because of her poverty she was unable to pay the same; and that counsel had made several trips to Banks County to obtain evidence to be used in the hearing, and had traveled over forty-eight miles from Cornelia to Winder, to attend the hearing of the application for alimony and fees, and had received nothing for expenses or fees.
On March 29, 1943, the court rendered the following judgment: "The above-stated matter was heard at the time and placed fixed by previous order, and judgment reserved. The contentions of the parties are in direct and sharp conflict, as likewise the affidavits of each. It appears the parties were married on January 18, 1942, and separated January 27, 1942, plaintiff alleging, as the ground for divorce, pregnancy of the defendant at the time of the marriage, unknown to plaintiff. Personal service was had of this suit for divorce on defendant February 4, 1942. She filed no answer until after first verdict, and not until November 9, 1942. In this she asked for permanent alimony and counsel fees. On January 21, 1943, she filed a supplemental petition for temporary alimony. The trial of the case before a jury at the March term, 1943, was continued by the defendant. The evidence of plaintiff on the alimony feature, in my opinion, preponderates, and on vital issues. Under the circumstances recited and under the evidence adduced, I am constrained to refuse at this time to award temporary alimony. It is thereupon considered, ordered, and adjudged that no temporary alimony is at this time awarded to defendant for self or minor child. The question of counsel fees is now passed on, but left open; and same may be again presented when the evidence is adduced before a jury on the final trial of the case." The exception is to that judgment.
It is contended by counsel for the plaintiff in error that it was an abuse of discretion to refuse to allow temporary alimony, for the reason that the wife presented evidence that her pregnancy was caused by the husband before marriage, and that when she made known such fact to him he admitted that he was the father of the child; and that, while in his response he denied such parentage, he did not on the hearing offer any testimony to contradict her charge. In addition to the evidence set forth in the statement of facts it is stated in the brief of counsel for the husband that his sworn response was introduced in evidence; and upon this response counsel strongly relies as creating a conflict with the evidence on behalf of the wife. The record does not disclose whether or not such response, which was sworn to from the knowledge of the affiant and not from his information and belief, was in fact introduced in evidence; but in a case of this kind its actual introduction is not necessary to enable the court to consider it in exercising its discretion as to the grant of temporary alimony. In Rogers v. Rogers, 103 Ga. 763, 765 ( 30 S.E. 659), in which all the Justices concurred, it was said: "The hearing of an application for temporary alimony is only a preliminary investigation, and the order granting such alimony is merely interlocutory, subject to review or modification at any time. Proceedings for a divorce and for alimony have always, under the practice in this State, been regarded as equitable. Following out the reasoning of counsel for the plaintiff in error, the judge in the trial of an application for injunction would be compelled to hear the witnesses orally, and to allow them to be subjected to cross-examination. In regard to the practice in applications for injunctions, the Civil Code, § 4925 [Code of 1933, § 55-202], declares: `When any hearing shall take place in conformity to the rules of law now existing for granting and dissolving injunctions, the judge before whom said hearing takes place may grant or refuse said injunction on the terms the law now requires.' If the word `hearing' contemplates oral examination in an application for alimony, it would apply also to an application for injunction." It was ruled: "On the hearing of an application for temporary alimony, the judge has the discretion to hear the testimony either by affidavits or orally." See Whitfield v. Whitfield, 127 Ga. 419, 421 (2) ( 56 S.E. 490). The response of the husband, having been positively sworn to, was itself as much of an affidavit as if its contents had been placed in a separate paper in the usual form of an affidavit, and sworn to. Under the decisions above mentioned the pleadings in an alimony case stand on the same footing as those in an injunction proceeding; and of course, in such latter instance, "The petition and the answer, both being verified, served the office of both pleading and evidence." Saint Amand v. Lehman, 120 Ga. 253 (4) ( 47 S.E. 949); Roberts v. Roberts, 180 Ga. 671 (3) ( 180 S.E. 491); Atlantic Coast Line R. Co. v. Gunn, 185 Ga. 108 (4), 111 ( 194 S.E. 365); Grizzel v. Grizzel, 188 Ga. 418 (2), 422 ( 3 S.E.2d 649). Consequently the judge, having before him the positively sworn response of the husband, had the right to take into consideration the facts set up therein, without it being formally introduced in evidence.
A mere reading of the evidence, including the sworn answer of the husband, shows a marked conflict as to the cause and circumstances of the separation. The wife swore that the husband was the father of her child, as a result of sexual intercourse under a promise of marriage. He swore that he never had sexual intercourse with her before marriage, and that shortly after the marriage she confessed to him a pregnancy previously unknown to him, naming the father of the child, a young man who had entered the armed forces of the United States Government, and whose name the husband would disclose if directed by the court. If in truth the husband was not the father of the child, he was under no obligation for its needs; and as to the allowance of temporary alimony to the wife, it is provided in the Code, § 30-205; "On application for temporary alimony, the merits of the cause are not in issue, though the judge, in fixing the amount of alimony, may inquire into the cause and circumstances of the separation rendering the alimony necessary, and in his discretion may refuse it altogether." Under numerous decisions of this court the discretion of the judge in allowing or disallowing alimony and attorney's fees under this section will not be controlled, unless that discretion is shown to have been flagrantly abused. Under the marked conflict above referred to, and other evidence before him, it can not be said that any flagrant abuse of discretion appears in the disallowance of alimony by the judge. Accordingly the judgment will not be disturbed.
Counsel for the plaintiff in error argues that the judgment should be reversed, for the reason that it appears to have been based on knowledge gained elsewhere than on the hearings, because it is recited in the judgment that "The trial of the case before the jury at the March term, 1943, was continued by the defendant. The evidence of the plaintiff on the alimony feature, in my opinion, preponderates, and on vital issues. I am constrained to refuse at this time to award temporary alimony." It is contended that the case was not continued by the plaintiff in error, and that she had no opportunity to contradict or explain anything which happened at the March term, 1943, which was several weeks after the evidence on the question of temporary alimony had been presented. What we gather from this argument is that counsel conceives that in rendering the judgment the judge took into consideration "circumstances" disclosed at the March term, 1943, of which counsel was not aware and had no opportunity to explain. We do not think the judgment is susceptible of any such construction. Clearly the "circumstances" referred to in the judgment were those set forth in its opening portion, without any intimation (though it was stated that the trial of the case before a jury at the March term, 1943, was continued by the defendant) that any testimony on the question of alimony was presented at that time or at any time since the hearings on January 30, 1943, and February 13, 1943, at which at least one of the defendant's counsel was present.
The contention that the court erred in refusing to allow attorney's fees is without merit, inasmuch as it is shown by the judgment that the court merely postponed, until the hearing of the divorce case on its merits, any ruling on the question of attorney's fees.
Judgment affirmed. All the Justices concur.