Summary
In Mullikin v. Mullikin, 200 Ga. 638 (5) (39 S.E.2d 281), it was held that a wife is not entitled to an award of temporary alimony or attorney's fees, and that it is erroneous for the judge to award either, where it appears without dispute that she abandoned her husband and refuses to live with him without just cause.
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15468.
MAY 8, 1946.
Alimony, etc. Before Judge Jones. Bibb Superior Court. January 25, 1946.
Earl W. Butler, for plaintiff in error. F. L. Clements, contra.
1. Cruel treatment, as ground for divorce under the Code, § 30-104, "is the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies an apprehension of danger to life, limb, or health." Ring v. Ring, 118 Ga. 183 ( 44 S.E. 861, 62 L.R.A. 878).
2. "Cruel treatment which would justify a wife in leaving her husband and living in a state of separation from him, while he is willing to have her come back to his home and live with him, should have the same definition as the cruel treatment which would afford grounds for a divorce." Durham v. Durham, 156 Ga. 454 (7), 457 ( 119 S.E. 702).
3. Alimony should not be awarded to a wife who abandons her husband without just cause. Fuller v. Fuller, 108 Ga. 256 (4) ( 33 S.E. 865). In this case, the testimony of the wife as given on the hearing of her application for temporary alimony and attorney's fees failed to show cruel treatment as defined above, and the evidence as a whole showed without dispute that she failed and refused to live with her husband in a home which he had provided for her, and that she did so without just cause. In these circumstances, the judge erred in requiring the husband to pay any sum to the wife as temporary alimony or attorney's fees. 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); 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 ( 34 S.E.2d 509).
4. Whether the testimony of the wife that she refused to live with her husband because she was pregnant and wanted to stay with her mother until after the child was born, so that her mother might help wait on her, and because it was more convenient for her to live "close in town" where she could go to the doctor, might have been sufficient to show a desire on her part to live with her mother only temporarily, on account of her condition, and whether such a temporary separation from her husband would have been justified under the reasons given, if nothing else had appeared ( Pace v. Pace, 154 Ga. 712 (2)), yet the fact that the suit for divorce and alimony was filed without further cause for separation (so far as shown) precludes any inference favorable to the wife upon either of such issues.
5. 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. Compare Barnett v. Barnett, 191 Ga. 501, 502 (4) ( 13 S.E.2d 19). Nothing to the contrary was held in either of the following cases cited by the defendant in error: Dillard v. Dillard, 182 Ga. 779 ( 187 S.E. 16); Long v. Long, 191 Ga. 606 ( 13 S.E.2d 349).
Judgment reversed. All the Justices concur.
No. 15468. MAY 8, 1946.
On January 15, 1946, Mrs. Jewell Mae Mullikin sued her husband, Roy O. Mullikin, for divorce on the ground of cruel treatment. The petition also alleged that the plaintiff would become a mother about March 25, and asked that she be awarded alimony for the support of herself and to take care of the lying-in expenses and attorney's fees for the filing and prosecution of this case, both temporary and permanent for herself and expected child. On a hearing as to temporary alimony and attorney's fees, after the introduction of evidence by both parties, the judge passed an order granting to the plaintiff $26 per month as temporary alimony "for her own support," and $15 on account of attorney's fees. To this judgment the defendant excepted. The following evidence was introduced: Mrs. Jewell Mae Mullikin, the plaintiff, testified: Direct examination: "I was married to the defendant on March 19, 1945, and we separated on December 31, 1945. He was cruel to me as he would not give me any money, and he would not pay my board and he would fuss and quarrel because I would not go to his room when he had the flu. I am pregnant and expect a child to be born on or about March 25, 1946. My husband works at Robins Field and makes $130 per month and he refuses to support me. I am staying with my mother. My board is $6 per week."
Cross-examination: "My husband was in the Army when we married, and he got out of the Army on November 28, 1945. Yes, he got wounded in Germany. It is true that he rented an apartment for us at Robins Field and asked me to go there and live with him as it would be nearer his work, and I refused to go with him and live at Robins Field. I refused to go out there because it was more convenient for me to live close in town where I could go to the doctor. I also wanted to stay with my mother until after the child was born so that she might help wait on me. Yes, it was more convenient for him to be at Robins Field close to his work so that he would not have to go back and forth every day. I could come in from there to see the doctor when necessary, but it would be more convenient for me to be close in town. He rented an apartment on Houston Avenue. I do not remember saying that I would not live with him on Houston Avenue. After he had gotten his things on the truck, he looked in the room and asked me if I were going with him and I said, `I reckon not.' He did not put my things on the truck and I do not remember him trying to get me to go to Houston Avenue. He left me at my mother's home."
The defendant, Roy O. Mullikin, testified: Direct examination: "I married my wife on March 19, 1945. I was in the Army at that time. I was wounded in Germany. I was struck by mortar-shell shrapnel, and lost my right eye and right ear drum. My wife did not care anything for me. She would do nothing for me and would have nothing whatever to do with me. She would not even let me touch her. She would not go out to the show or to any place with me, and when I would go myself and got back she would not be at home and would not tell me where she had been. I bought her some clothes and she would not have them and gave them back to me, saying she did not want any clothes from me. I love my wife and want to live with her. I provided a home for her and she refused to live with me. I rented an apartment at Robins Field where I could be near my work and tried to get her to go there and live with me and she refused to go. I then rented an apartment on Houston Avenue, at the edge of Macon, for us and tried to get her to go there and live with me and she refused to go. She paid no mind to me and did not want to be around me. I am willing right now to provide a home for my wife and live with her and want her to go to a home I will provide and live with me as a wife should, and if she will do that, I will right now take her and support her and provide a home for her and do all I can for her. Just as soon as we were married I made an allotment to her of $50 per month, and she has drawn from the Government $50 per month from the time of our marriage until I got out of the Army on November 28, 1945. I do not make $130 per month. In December I made $77.82, and I only was discharged from the Army on November 28, 1945, and have only worked since I got out of the Army. I want to live with my wife, but cannot make her live with me. I will take her back right now, if she will live with me."
Cross-examination: "Yes, sir, my base pay is $1200 per year, but as I have told the judge I do not make that much. I have told what I make and here is the statement from the Government showing that I make $77.82 per month. I have not drawn any pension from the Government, but have put in for one. I don't know when or if I will get a pension. It might be more convenient for my wife to live with her mother, but I think it is her duty to live with me, as I am her husband and I can't live with her mother too. I must live somewhere. My wife told me that the doctor told her not to go in my room when I was sick. I called the doctor and asked him if this was true, and he told me he told her nothing of that kind. I was sick in bed on December 27th and 28th, 1945, only two days, and I did not complain at all about my wife not coming into the room. I am now willing to live with my wife, if she will live with me. I want her to live with me and I will support her, furnish a home to live in, and do the best I can for her."
T. F. Molton, testified for the defendant: "On December 31, 1945, I heard Mr. Mullikin ask his wife to go out on Houston Avenue and live with him, and she refused to go."
The defendant also introduced documentary evidence, showing that on December 12, 1945, he rented an apartment and deposited $23 as rent on same to January 11, 1946, but that later he was charged rent only for sixteen days, that is from December 16 to December 27, and $10.73 was refunded to him.