Brisendine v. Brisendine , 152 Ga. 745 ( 1922 )

Fish, C. J.

1. There was no effort to assign error in the bill of exceptions on any judgment other than one rendered November 5, 1920, awarding the wife temporary alimony and counsel fees in the proceeding under the Civil Code, § 2986. The judge certified that the bill of exceptions was tendered to him on November 25, 1920, and for providential reasons not certified until January 28, 1921. Accordingly, the motion to dismiss the writ of error is without merit.

2. A wife sued for divorce on the ground of cruel treatment, and in the petition prayed for an allowance of counsel fees, and for permanent and temporary alimony for lierself and minor daughter. On a hearing counsel fees and temporary alimony were allowed pending the action. On the trial of the suit for divorce there was a verdict that the wife was not entitled to a divorce, and a decree was entered in accordance with the verdict. Subsequently, and while no suit for divorce was pending, the wife instituted a proceeding under the Civil Code (1910), § 2986, for permanent and temporary alimony for herself, and an allowance for counsel fees, alleging that she and her husband w'ere living in a bona fide state of separation caused by his cruel treatment towards her — the acts of cruelty alleged being the same as those set forth in her petition as grounds "for divorce. On a preliminary hearing she was allowed temporary alimony and counsel fees. Meld:

No. 2492. February 18, 1922.

Alimony, etc. Before Judge George L. Bell. Fulton superior court. November 5, 1920.

T. G. Battle and W. I. Heyward, for plaintiff in error. James & Bedgood, contra.

(а) The award of temporary alimony to the wife for herself and minor daughter pending her suit for divorce terminated with the conclusion of that action against her. Bishop v. Bishop, 124 Ga. 293 (52 S. E. 743); Mason v. Mason, 151 Ga. 468 (107 S. E. 331).

(б) The verdict and decree against the wife in the suit for divorce was no bar to the allowance of alimony to her in the statutory proceeding. King v. King, 151 Ga. 361 (106 S. E. 906.)

3. Alimony will not be allowed to a wife who abandons her husband without just cause. Fuller v. Fuller, 108 Ga. 256 (33 S. E. 865).

(a) This is a proceeding under the Civil Code (1910), § 2986, for the allowance of alimony and counsel fees, where the husband and wife are living in a bona fide state of separation. On the hearing the testimony of the wife clearly showed that she voluntarily abandoned her husband without just cause. It was therefore an abuse of discretion to allow her alimony and counsel fees. Davis v. Davis, 145 Ga. 56 (88 S. E. 566).

Judgment reversed.

All the Justices coneur.