Opinion
13014.
OCTOBER 11, 1939.
Alimony. Before Judge Persons. Monroe superior court. July 15, 1939.
Thomas A. Jacobs Jr., for plaintiff in error.
Williams Freeman, contra.
1. Although the husband denied that he drove the wife from the home with a gun or otherwise, and on cross-examination she testified that he did not point a gun at her or threaten her with it, she stated on direct examination that "he got a shotgun and told me to get out," and continued to testify on cross-examination that he "had it when he told me to leave." This evidence was sufficient to authorize a finding by the judge that the wife, under her petition for alimony without a divorce, had been "driven off by her husband," and therefore was entitled to temporary alimony. Code, §§ 30-205, 30-210, 30-213. See Gaulding v. Gaulding, 184 Ga. 689 ( 192 S.E. 724).
2. "A reasonable allowance [for temporary alimony] under all the circumstances is proper, even though the husband at the time of the hearing may have no property or employment," and be merely of a robust health with an earning capacity. Hall v. Hall, 185 Ga. 502 (4), 506 ( 195 S.E. 731), and cit. The discretion of the judge in awarding amounts for temporary alimony and attorney's fees will not be disturbed, unless it has been flagrantly abused. Brown v. Brown, 159 Ga. 323 ( 125 S.E. 713); Houston v. Houston, 186 Ga. 140 ( 197 S.E. 237); Tillman v. Tillman, 187 Ga. 567 ( 1 S.E.2d 676).
( a) "The order allowing [temporary] alimony shall be subject to revision by the [trial] court at any time." Code, § 30-204; Wilkins v. Wilkins, 146 Ga. 382 ( 91 S.E. 415); Henderson v. Henderson, 170 Ga. 457, 460 ( 153 S.E. 182). If, after an allowance for temporary alimony and counsel fees, the husband becomes unable to meet the payments, he is entitled to show this, and the court has jurisdiction to entertain an application for a reduction of the amounts. Wester v. Martin, 115 Ga. 776 ( 42 S.E. 81).
( b) Under the evidence, the husband was a hard-working negro farmer, who had only a half interest in such profit as he might make from a 1939 crop, from which, as he testified, he expected nothing; and $100 in bonus bonds, a 1931 automobile in running condition but "not worth much," and nothing more. While, in view of these limited resources, the allowances of $15 for attorney's fees, payable at $5 a month, and $20 a month for temporary alimony, payable at $5 a week, appear liberal and likely soon to exhaust all the present assets of the husband, yet since such properties were sufficient at the time of the order to meet the current payments, and the question as to profit from the 1939 crop was not determined, this court will not hold that the awards were an abuse of discretion, especially in view of the sick condition of the wife, and the power of the court later to reduce the amounts, if the circumstances should render such an order proper.
Judgment affirmed. All the Justices concur.
No. 13014. OCTOBER 11, 1939.
This was a suit for temporary and permanent alimony and counsel fees, without a divorce, on the ground that the husband had driven the wife from the home. The court, on July 15, 1939, awarded $15 counsel fees, to be paid at the rate of $5 a month, and $20 a month temporary alimony, to be paid at the rate of $5 a week. The undisputed evidence showed that the plaintiff was a "good, hard-working negro woman," but that she had been and remained sick, had received and was still in need of medical attention, and at the time of the hearing could not do "work in the field or hard work," as she had been accustomed; that the husband was "an honest, hard-working negro farmer," and that up to the time of the separation they had got along well together. As to the cause of the separation, the evidence showed that the wife had pyorrhea and indigestion. She testified: "My husband told me I could not stay [at the home] any longer. He told me I had to go to my home. He said, `I don't want you to die on my hands; so you will have to get out.' He got a shotgun and told me to get out. He said he was ashamed of me, that he wanted a woman he could be proud of, and that I had been poisoned. I asked him to carry me home, but he made me walk on a hot day. I was sick at the time." On cross-examination she said: "He did not point the gun at me or say he would shoot me. He did not threaten me with the gun, but he had it when he told me to leave." Her mother had a home, and looked after her. The husband denied the statements of the wife, and said that they had never had any arguments or fights, and that he was ready to take her back and "give her good medical care just like I always have, if she is willing to come back."
As to the financial ability of the husband, the evidence showed that he had paid in cash the doctor's bills for his wife and other bills, and had nothing else coming to him from last year's cotton, which had been sold; that he then had two bonus bonds of $50 each, which was all that remained from such bonds after he had paid the doctor's bills and other living expenses; that he owned a 1931 Chevrolet car in running condition, but "old and not worth much;" that he made no money in the previous year from a farm owned by his mother, with whom he lived and divided such money as they made; that "from what I see now of the crop for this year, I don't believe I will make anything this year;" and that he had no income.