Dicken v. Dicken , 38 Ga. 663 ( 1869 )

Buowx, C. J.

It is not the purpose of this Court to enter into a discussion of the merits of the unfortunate difficulties which have resulted in the separation of the parties to this record. Doubtless the heavy losses which they sustained by the war, had much to do in producing the state of mental disquietude and irritability which led to the separation. From the possession of what, in the section of country where they lived, might be termed wealth, they were reduced in their estate, till they must labor in their old age for a living, much less comfortable than they formerly enjoyed without the necessity of daily toil. Struggling with these misfortunes, Mr. Dicken found his wife unwilling to accommodate herself to their changed condition and to live in the country, in the simple style which he felt obliged to adopt. This, with his losses resulting from unfortunate trading since the war, had affected his mind very seriously; and it would seem, from the testimony of the witness, and the irregularities of his conduct, so much in conflict with his Christian character, that it must, at times, have produced temporary insanity. In this unfortunate condition- of the family, the record does not show that the wife conducted herself with that gentle forbearance, or that she displayed that sympathy and kindness so characteristic of her sex, in times of misfortune and distress. Had her course been different towards her husband in his periods of gloomy depression, the necessity for this proceeding might probably never have existed.

1. But it is insisted by the learned counsel for Mrs. Dicken, that the Court had no right to inquire into the causes of the separation, in a motion for temporary alimony — that the proof of the marriage and the pendency of the action Tor divorce entitled her to it, as matter of right. We admit that some of the former decisions of this Court, go far to sustain this view of the case. But we think the rule,- if it had been so established by the Court, has been changed by the Code, ,and that the change was a proper one. The legislature has certainly gone quite as far as sound public policy authorizes, (it might not be proper for the Court to say, further than the New Testament justifies,) in the enactment of laws facilitating the separation of husband and wife by divorce.- If the Courts encourage those separations, by a liberal grant of temporary alimony, when the wife, as plaintiff, is decidedly at fault, the evil will be greatly increased.

It follows, therefore, in our opinion, that the legislature acted wisely in giving the Judge the power, in his discretion, to inquire into the cause and circumstances of the separation, in fixing the amount of alimony, and in authorizing him, in proper cases, to refuse it altogether. When the wife has, in fact, been wronged, and she comes into Court with a just cause of action, every facility should be afforded her, to litigate upon terms of perfect equality with her husband, and the Judge should so shape his orders as to give her the means to do so, with a comfortable support, according to her status in society, and her husband’s ability, pending the litigation. But the Judge should not be bound to give alimony to encourage such litigation, in every case where an imprudent, high-tempered, or even criminal wife chooses to commence proceedings of this character against her husband. He is not bound to inquire into the cause and circumstances of the separation. The statue says he may do it. And as he is to ^zeroise a sound discretion in determining on the amount of alimony to which the wife is entitled, or whether she is entitled to any, there seems to be good reason why he should mak<i¡ the inquiry in a largo proportion of the cases of this character, which come before him.

But it was insisted that the Judge allowed a less sum for counsel fees, in this case, than was proven to be the minimum fee, for the prosecution of such a case, and that his judgment was, therefore, contrary to the evidence and should be set aside. If the Judge had the right, after the hearing of the case, to refuse anything for alimony or counsel fees, we do not see why he had not the right to allow a less amount than the proof shows the services of the counsel to be worth.

2. The whole question is one of sound discretion. Under all the facts and circumstances of this case, did the Judge abuse the discretion vested in him by the statute, to such an extent as to make it the duty of this Court to interfere, and set aside the judgment. We think not.

It is claimed that there is some ambiguity in the order which leaves it doubtful, whether Mrs. Dieken is to have the use and control of the house in Griffin, where she lives, which one of her witnesses testifies, will rent for $250 00 per annum, as her alimony, or whether she has only the right to occupy a room in the house. We construe the judgment to mean that she is to have the use and control of the house, with the right to receive the rents during the litigation, and we have so shaped our judgment as to make that certain, if it were not so already.

Judgment affirmed.