Pace v. Pace , 154 Ga. 712 ( 1922 )

Hines, J.

1. An assignment of error upon a judgment awarding alimony and counsel fees in a proceeding under the Civil Code, § 2986, that such judgment is contrary to law, raises the question that the same is without evidence to support it; and a bill of exceptions to review such judgment, in which this is the sole assignment of error, will not be dismissed because the same does not specifically assign any error. Barksdale v. Brown, 16 Ga. 95; Holst v. Burrus, 79 Ga. 111 (4 S. E. 108); Mathews v. Parker, 124 Ga. 144 (52 S. E. 322); Harwell v. Marshall, 125 Ga. 451 (54 S. E. 93); Patterson v. Beck, 133 Ga. 701 (66 S. E. 911); Cambridge Tile Co. v. Scaife Co., 137 Ga. 281 (73 S. E. 492). In Adams v. May, 145 Ga. 234 (88 S. E. 928), Holland v. Holland, 147 Ga. 32 (92 S. E. 538), Haley v. Com. Nat. Bank, 147 Ga. 555 (94 S. E. 1013), and Edwards v. Finley, 150 Ga. 200 (103 S. E. 156), error was assigned upon judgments without stating any ground upon which it was based.

2. In this State the husband is the head of the family, and as such has the right to fix the matrimonial residence without the consent of the wife; and the wife is bound to follow her husband, when he changes his residence, provided the change is made by him in good faith, and not from whim or caprice, or as mere punishment of the wife, or to a place where he does not intend to reside, or to a place where her health or comfort will be endangered. Hardenbergh v. Hardenbergh, 14 Cal. 654; Babbitt v. Babbitt, 69 Ill. 277; Boyce v. Boyce, 23 N. J. Eq. 346; Cutler v. Cutler, 2 Brewst. (Pa.) 511; Angier v. Angier, 7 Phila. (Pa.) 305; 15 Am. & Eng. Enc. Law (2nd ed.), 812; Sindall v. Thacker, 56 Ga. 51; Civil Code (1910), § 2183. This rule is not altered by an antenuptial agreement to the contrary. Hair v. Hair, 10 Rich. Eq. (S. C.) 163. And this is especially true, where the husband, who was 63 years old, had been a farmer all his life, was unskilled in any other trade, arid who, after trying to live in a city and support himself, wife and her children, was unable to do so, because he was unable to obtain any work and incapable of earning a living in the city.

3. Where the husband was unable to earn a living in town or city, for the reason above stated, and where he had a farm in a good community, upon which he could make a living for himself and wife and her minor children, to which home he had entreated his wife to come and live with him, which, a fair analysis of the evidence discloses, she refused to do, because of an antenuptial agreement, between her and her husband, by which he was to take her from the country to a named town or city, upon the faith of which she married him; and where the husband could get at the utmost $175 per annum for rent of his farm, and where he had no other income or means of support than what he made on or derived from his farm, and where it does not appear that the husband had ever treated his wife cruelly, otherwise than failing to furnish her all of her support while living in the city, and none after her refusal to go and live with him on his farm, the refusal of the wife to live in his home on the farm was, in effect, her abandonment of him (Hair v. Hair, supra), although he left her, when she refused to go, for the purpose of living at his farm home: and such abandonment of the husband by the wife without just cause will defeat her recovery of alimony and attorney’s fees under the Civil Code (1910), § 2986. Fuller v. Fuller, 108 Ga. 256 (33 S. E. 865); Davis v. Davis, 145 Ga. 56 (88 S. E. 566); Brisendine v. Brisendine, 152 Ga. 745 (111 S. E. 22).

No. 3181. December 22, 1922.

4. Under the circumstances, the grant of $30 per month to the wife as alimony, and $50 for attorney’s fees was an abuse of discretion on the part of the trial judge.

Judgment reversed.

All the Justices concur. A. L. Bartlett and W. E. Spinhe, for plaintiff in error. A. J. Camp, L. P. Camp, and C. B. McGariiy, contra.