ARGUED FEBRUARY 11, 1964.
DECIDED MARCH 5, 1964.
Temporary alimony, etc. DeKalb Superior Court. Before Judge Dean.
Zachary Hunter, for plaintiff in error.
Llop Long, Nick Long, Jr., Fred Gilbert, contra.
The trial judge did not err where on conflicting evidence he granted temporary alimony, the continuance of a restraining order, and attorney's fees.
ARGUED FEBRUARY 11, 1964 — DECIDED MARCH 5, 1964.
Shirley Jeanette Walton brought her petition for divorce against Leon Scrub Walton in the DeKalb Superior Court. The defendant filed his demurrers and answer and the cause came on for interlocutory hearing at which the following pertinent evidence was adduced.
The plaintiff wife introduced evidence that she had debts of some $2,700 plus prior attorney's fees of $1,200 and a second mortgage held by her present attorney in the amount of $3,500. She produced itemized monthly expenses for her and the children which amounted to $900 per month (equal to the temporary alimony award).
The defendant husband admitted owning controlling interest in four radio stations or corporations which shall be referred to as Walton, Chattanooga, National and Golden Triangle; that in 1962 they had combined assets of over $400,000 and profits of some $59,000; he explained that the profits did not represent income to him as an individual; in answer to questions regarding whether he could draw out any amount he desired, the defendant stated: "I have specific set figures as to how much I can or can not get out of the corporations ... at the end of the year if a station has made a certain amount of profit, then the stockholders decide to pay out the dividend, yes." (He is the principal stockholder in the corporations.)
The husband's answer alleged that three stations were now operating: Shreveport in which his interest was $5,000; Montgomery in which his interest was $25,000; Chattanooga in which his interest was $30,000. His testimony was to the effect that he had lost $70,000 in Shreveport; that his stock in Montgomery was worth around $10,000 and the station was not making money at present; that his interest in Chattanooga was $25,000. He stated that Golden Triangle was defunct and in existence only for the purpose of winding up its affairs; that its "assets just about offset the liabilities"; that he had some $40,000 which were proceeds from the sale of Golden Triangle distributed $10,000 each in 4 federal savings loan associations, all in his name but held for Golden Triangle; that the amount deposited was to cover taxes and other obligations.
The defendant conceded his income as shown on his 1962 Federal tax return was $34,284 but explained that less expenditures deducted was only $23,800. He stated his income up to November, 1963, was approximately $10,000; that "the only income I have now at all is from my radio station in Chattanooga, which I am drawing a thousand dollars a month." The plaintiff testified that the defendant drew a thousand dollars out of each station a month, and then in answer to repeated questions to that effect: "Not maybe each month but I have different dates where he has drawn it out, different stations at different times."
The plaintiff testified that the defendant had recently made money from a show which he presented at an auditorium or "Coliseum." The defendant stated that his wife just thought so because he had so much money on hand to pay the performers and that actually he lost $1,800.
Regarding the sale of a station KMLB in Monroe, Louisiana, the defendant did not remember when it took place but recalled it was over a period of several months and "it was in a bad financial condition." He made no mention of the sale of a station in Beaumont, Texas, about which the plaintiff testified "he just sold one ..."
The defendant admitted he "had deposited in Mexico" but no amounts were shown. He denied having stated that he had $170,000 in cash "stashed away" or had any hidden assets.
No documentary evidence was introduced by the defendant as to his financial status.
After the introduction of evidence by both sides, the trial judge issued an order granting custody of the two minor children to the plaintiff; giving her the temporary use of a Mercury Comet automobile; requiring the defendant to pay $900 per month as temporary alimony ($400 for the wife and $250 for each child); continuing a restraining order which enjoined the defendant from going upon the premises wherein his children reside except upon written permission of the court; and requiring the defendant to pay $1,000 attorney's fees.
The defendant excepted and assigns error on the order as being contrary to the law and evidence, that the judge abused his discretion and erred in the following particulars: (1) awarding the plaintiff $900 as temporary support; (2) continuing the restraining order; (3) awarding the plaintiff's counsel $1,000.
It is a familiar rule that a trial judge's grant of temporary alimony in a divorce case will be disturbed only where he flagrantly, abused his discretion. Swearingen v. Swearingen, 19 Ga. 265 (3); Etheridge v. Etheridge, 149 Ga. 44 (1) ( 99 S.E. 37); Golden v. Golden, 209 Ga. 915 ( 76 S.E.2d 697). Where the evidence is in conflict, the judgment of the trial court will be affirmed. Walden v. Walden, 151 Ga. 549 (1) ( 107 S.E. 483); Drake v. Drake, 182 Ga. 324 ( 185 S.E. 327); Stanton v. Stanton, 213 Ga. 545, 552 ( 100 S.E.2d 289, 66 ALR 2d 1401). With this in mind, we now review each of the alleged errors.
1. As to the award of temporary alimony.
There was no showing of such misconduct by the wife as would negate the judge's discretionary power to grant temporary alimony. See Code § 30-205. Hence, the only question for our determination is whether the award was excessive.
Our law provides that in a proceeding involving temporary alimony the trial judge shall hear both parties and evidence as to all the circumstances of the parties and shall grant such temporary alimony as the condition of the husband and the facts of the case may justify. Code § 30-202. In arriving at a proper provision the judge shall consider the peculiar necessities of the wife, and any evidence of her separate estate. Code § 30-203.
In passing judgment it is proper for the court to consider the available resources of the husband from which alimony might be paid. Carlton v. Carlton, 44 Ga. 216. Available resources is defined as either capacity to labor and earn or the ownership of property. Hannah v. Hannah, 191 Ga. 134 ( 11 S.E.2d 779), and cases cited. The court may always give consideration to securing for the wife the same social standing, comforts, and luxuries of life as she probably would have enjoyed had there been no separation. Jenkins v. Jenkins, 69 Ga. 483; Wills v. Wills, 215 Ga. 556, 558 (4) ( 111 S.E.2d 355); Reynolds v. Reynolds, 217 Ga. 234, 260 (12) ( 123 S.E.2d 115). In short, the necessities of the wife and the husband's ability to pay are the controlling factors in making an allowance for alimony. Robertson v. Robertson, 207 Ga. 686 (1) ( 63 S.E.2d 876); Wills v. Wills, 215 Ga. 556, supra.
Applying these standards there was evidence introduced as to the needs and expenses of the plaintiff and the children and as to the ample resources of the defendant husband to provide for them.
It is a well known legal precept that where a party has evidence in his power by which he may repel a claim against him and omits to produce it, or having more certain and satisfactory evidence relies on that which is weaker and inferior in nature, a rebuttable presumption arises that the claim is well founded. Code § 38-119. The husband could have produced records to show that his current resources were inadequate to provide for the expenses of the wife and children, but was content with vague statements that his enterprises were not successful as regards present profits. While the husband testified that his financial condition was not so good as it once had been, it is still apparent that he is a man of considerable means. This is not refuted by general denials as to the husband's worth and assets.
As to his present income, although the husband stated that his only income was that which he drew from a certain radio station, yet he never testified that he could not draw from other funds or from other enterprises. His wife contradicted his statement by testifying that he had drawn money from different stations at different times. Moreover, it has been held that the amount of temporary alimony is not limited to a fair proportion of the husband's income, but may trench upon the corpus of his estate. McGee v. McGee, 10 Ga. 477, 490; Lloyd v. Lloyd, 183 Ga. 751, 754 ( 189 S.E. 903).
In view of the evidence contained in the present record, the trial judge did not err in the grant of $900 per month as temporary alimony.
2. As to the continuance of the restraining order.
There was evidence that the father had threatened to take the children from the mother and that on a prior occasion he had taken one of the children away for an extended period of time.
There is not merit in this assignment of error.
3. As to the grant of attorney's fees.
Since the court has discretion to grant allowance for attorney's fees even where there is no evidence as to the value of the services rendered, Ogletree v. Ogletree, 169 Ga. 366
(150 S.E. 167), where the only exception is to the grant of the fee, there being no attack upon it as excessive or otherwise illegal, the trial judge did not err in making the instant allowance. Allen v. Allen, 194 Ga. 591, 592 (2) ( 22 S.E.2d 136).
Judgment affirmed. All the Justices concur.