Waller v. Waller , 163 Ga. 377 ( 1926 )

Russell, 0. J.

The defendant in error filed a suit for divorce and alimony against the plaintiff in error. The judge entered an ad interim order for alimony and attorney’s fees, but upon the trial of the case the jury returned a verdict in favor of the defendant (plaintiff in error in the case at bar). The wife made a motion for a new trial, which she later voluntarily dismissed. Thereupon the husband, ceased the payment of the alimony which had been previously awarded by the judge of the superior court. The wife then filed the petition involved in the case now before us, and asked alimony as an allowance for the support of the child which was the fruit of the marriage union. Upon her petition the trial judge made an allowance in the name of the mother, but expressly for the support of the child, of $20 per month, and for counsel fees. The exception is to this judgment.

The contention of learned counsel for the plaintiff in error is that under the ruling of this court in Meadows v. Meadows, 161 Ga. 90 (129 S. E. 659), the verdict of the jury in the prior suit for divorce precludes the right to recover in the proceeding for alimony now before us. In the Meadows case we held that where prayers for temporary and permanent alimony and attorney’s fees are not based on the ground that the parties are living in a bona fide state of separation, but are incidental to a suit for divorce, a verdict refusing a divorce will carry with it the prayers for alimony and attorney’s fees (Brightwell v. Brightwell, 161 Ga. 89, 129 S. E. 658, citing Stoner v. Stoner, 184 Ga. 368 (4), 67 S. E. 1030). We can not agree with the contention that the verdict of the jury in the present case precluded any right on the part of the wife to recover alimony for the support of the child. Under the provisions of the Code section with reference to the rights of the wife to alimony (C. C. § 2986), we are not called upon at this time to decide whether an adjudication at one period in which the wife might be refused alimony would be a bar to any subsequent application made by the wife based upon different circumstances from those which obtained at the time a former application for alimony was declined. It is not necessary now to determine in this ease, under the rulings in the Brightwell and Meadows cases, supra, whether the failure of the wife at one time to obtain alimony for herself would at some future time prevent an allowance of alimony to a wife who was still the wife of her husband because the marital relation had never been dissolved. Nothing ruled in the Brightwell, Meadows, or Stoner ease in any way affects the decision of the point presented in the case at bar. The only question before, us in this ease is whether the refusal of the jury to grant the wife a divorce where application was made for alimony as incidental to the suit for divorce, and in which this court very properly held that the alimony would fall with the failure to obtain divorce, will prevent the grant of an application for alimony for the support of children issue of the marriage where the undivorced parents are living separate and the child or children are in the custody of the mother. In the application for divorce and incidental alimony which was refused by the jury, the wife asked alimony for herself alone. In the petition for alimony presented in this case the allowance was expressly sought and granted solely for the support of the minor child. Nothing more was ruled in the cases cited by counsel than that where a wife asked alimony as an incident to the divorce, and the application for alimony was not based upon the ground that the parties were living in a bona fide state of separation, a verdict refusing the divorce would carry with it the prayers for alimony and attorney’s fees. Clearly that was a ruling confined to the precise point in the case. It can not be construed as a holding as to whether the wife -would be debarred from subsequently asking alimony for herself, with proper allegations alleging a state of actual and bona fide separation between the husband and wife. So the issue in this case is reduced to the single proposition as to whether the judge erred in granting alimony for the support of the child of the plaintiff in error, of which the mother has care and custody, while the parents are living apart from each other. As the father is by law required to support the child, unless by some judgment otherwise the mother has assumed or had placed upon her the liability for its support, it seems plain that the trial judge did not err in granting the judgment allowed in this case. No misconduct of the mother will deprive an infant of its right to be supported by its father. Likewise, such infant can not be debarred of its rights in this respect by any judgment against its mother, even though incidentally and practically such infant might have been in a degree affected by the result of the judgment against its mother. So -we hold that even though a mother might be altogether deprived of any right to alimony, no matter upon what grounds the judgment might be predicated, such wife and mother, having the custody of a child of her husband, and who is -living separate and apart from her husband, is entitled to apply for alimony for the support of such child and to receive such allowance for this purpose as is neeessary in tbe opinion and discretion of the court to which the petition is addressed.

That a distinction and difference exists between the rights of the wife to alimony and those of children of the marriage to like support, see Rochester v. Rochester, 124 Ga. 993 (53 S. E. 399); Edmondson v. Edmondson, 128 Ga. 53 (2) (57 S. E. 308); Coley v. Coley, 128 Ga. 654 (2) (58 S. E. 205).

Judgment affirmed.

All the Justices concur.