Williams v. Williams , 194 Ga. 332 ( 1942 )

1. Where a wife's petition for permanent and temporary alimony under the Code, § 30-213, is dismissed for want of prosecution, a previous award of temporary alimony to the wife, based upon such petition, terminates with such dismissal. Bishop v. Bishop, 124 Ga. 293 (52 S.E. 743); Stallings v. Stallings, 127 Ga. 464 (56 S.E. 469, 9 L.R.A. (N.S.) 593); Higgs v. Higgs, 144 Ga. 20 (85 S.E. 1041); Mason v. Mason, 151 Ga. 468 (107 S.E. 331); Brisendine v. Brisendine, 152 Ga. 745 (2) (111 S.E. 22); Fauver v. Hemperly, 178 Ga. 424 (2) (173 S.E. 82).

2. Where such an action has been dismissed for want of prosecution, and has not been reinstated, the case is entirely out of court, and no further relief can be granted thereon. A petition "supplementary" to and expressly made a part of the first petition will not authorize a grant of permanent alimony or additional temporary alimony to the wife.

3. The dismissal of the suit for alimony does not terminate the right of the wife to enforce the installments of temporary alimony which became due before such dismissal. Fauver v. Hemperly, supra, and cit.

4. Subsequent voluntary cohabitation will render void a judgment for temporary alimony. Weeks v. Weeks, 160 Ga. 369 (127 S.E. 772); Mosely v. Mosely, 181 Ga. 543 (182 S.E. 849); Thomas v. Smith, 185 Ga. 243 (3) (194 S.E. 502).

5. An order granting temporary alimony is always in the breast of the court, and the court is authorized at any time, in the exercise of a sound discretion, to revise or revoke such an order. Code, § 30-204; Jennison v. Jennison, 136 Ga. 202 (71 S.E. 244, Ann. Cas. 1912C, 441); Hemphill v. Hemphill, 172 Ga. 387 (157 S.E. 637). The judge being authorized to find from the evidence in the instant case that the parties resumed cohabitation within a week after the temporary alimony had been awarded, it was not error to declare such order null and void.

Judgment affirmed. All the Justicesconcur.

No. 14159. JUNE 18, 1942. REHEARING DENIED JULY 16, 1942. In May, 1931, Susie Mae Williams instituted proceedings against her husband, Nathaniel Williams, to obtain permanent and temporary alimony. On July 25, 1931, the court awarded to the plaintiff temporary alimony of $4 a week, and $20 as attorney's fees. On November 3, 1931, the court entered an order dismissing the plaintiff's petition "for want of prosecution;" and this order was duly entered on the records of the court. On August 20, 1941, the plaintiff filed a petition "supplementary" to her petition which had been dismissed, in which she alleged that the defendant had failed and refused to pay the temporary alimony awarded on July 25, 1931, although he was well able to do so, as he had recently inherited considerable property. The prayers of the supplemental petition were, that the defendant be required to pay all accrued installments of temporary alimony; that she be awarded permanent alimony by a jury; that she be awarded increased temporary alimony and attorney's fees; that the defendant be adjudged in contempt; and for general relief. The court issued a rule nisi calling upon the defendant to show cause why the prayers of the petitioner should not be granted. On August 29, 1941, at a hearing on this rule nisi by Judge A. M. Anderson, the plaintiff introduced in evidence the order of July 25, 1931, awarding her temporary alimony. The defendant introduced the judgment of November 3, 1931, dismissing the original petition, and testified that he and the defendant resumed cohabitation within a week after the order awarding temporary alimony was entered, and lived together until the plaintiff left him without cause. The judge entered the following order: "The foregoing petition to adjudge the defendant in contempt of court is hereby denied, the petition for temporary alimony is likewise denied, as well as application for attorney's fees in this case is denied."

On September 17, 1941, the defendant filed a plea and answer to the "supplementary petition" of the plaintiff, in which he alleged that the temporary alimony judgment was null and void, because the parties resumed cohabitation within a week after that judgment was entered, and because the original petition on which it was based had been dismissed on November 3, 1931. For the reasons stated he alleged that that judgment should be declared null, void, and of no effect. At the trial in February, 1942, the facts stated above, with reference to the orders and judgments of the court, appeared without dispute. On the question whether the parties had resumed cohabitation after the grant of temporary alimony, the evidence was in direct conflict. At the conclusion of the evidence the judge withdrew the case from the jury and entered an order denying all of the relief prayed for by the plaintiff, declaring null and void the award of temporary alimony of July 25, 1931, except as to the attorney's fees, and ordering cancellation of any execution theretofore issued in the case. The plaintiff excepted.