Dickens v. Dickens , 211 Ga. 796 ( 1955 )

211 Ga. 796 (1955) 89 S.E.2d 161

DICKENS
v.
DICKENS.

19017.

Supreme Court of Georgia.

Argued July 12, 1955. Decided September 12, 1955.

James W. Arnold, for plaintiff in error.

William L. Preston, A. M. Kelly, contra.

HAWKINS, Justice.

The record in this case discloses that the issue of temporary alimony for the support of the wife and two children of the plaintiff in error has been before the trial judge four different times; first in a suit filed August 12, 1954, wherein the court awarded $175 per month. Thereafter, there was a reconciliation, but in November, 1954, another suit was filed, resulting in the same award. In February, 1955, the plaintiff in error filed an application for a modification of the previous award, and on a hearing the trial judge reduced the monthly allowance to $137.50. On failure of the plaintiff in error to comply with that order, and on application of the wife and children for an attachment for contempt, the trial judge, in May, 1955, found that the plaintiff in error was due $425 in past-due alimony, and adjudged him in contempt, providing that he might purge himself by paying this sum. To this judgment the plaintiff in error excepts. Held:

1. The evidence was conflicting as to the financial ability of the plaintiff in error to comply with the previous decree of the court, but did not show conclusively as a matter of law that the husband was unable to comply with the judgment awarding temporary alimony, and the judgment holding him in contempt will not be reversed by this court. Shahan v. Shahan, 204 Ga. 342 (49 S. E. 2d 822); Townsend v. Townsend, 205 Ga. 82 (52 S. E. 2d 324).

2. Not being fully satisfied that the present writ of error was filed for the purpose of delay only, the motion of counsel for defendant in error that damages be awarded by this court under the provisions of Code § 6-1801 is denied. Lipton v. Lipton, 211 Ga. 442 (3) (86 S. E. 2d 299).

Judgment affirmed. All the Justices concur.