Coleman v. Coleman , 205 Ga. 92 ( 1949 )

Where, in a proceeding for temporary alimony, nothing was awarded the wife except a stated amount as attorney's fees, upon a hearing for contempt for a failure to pay the same, the sole issue is the ability or inability of the husband to make the delinquent payments, and upon this question the discretion of the trial judge, where no abuse thereof is shown, will not be disturbed.

No. 16574. MARCH 16, 1949. This case comes to this court on an exception to a judgment holding the husband in contempt for a failure to pay temporary alimony.

The wife filed a suit for divorce upon the ground of cruel treatment, and prayed for both temporary and permanent alimony and attorney's fees. The suit sets forth many and various instances of acts of violence upon her person and other conduct on the part of the husband, which, if only partly true, would brand the husband as a very bad man; and would indicate that the wife, by constantly undergoing this treatment in an effort to maintain the marital status was loving, forbearing, and patient. She further asserted that he had funds, but was seeking to hide them from an alimony judgment. On the other hand, the husband, in his answer sets forth a series of acts and conduct on the part of the wife, which pictured her as both mean and vicious and indicated by his efforts to maintain the marital status that he was equally as loving, forbearing, and patient. He further set forth that his health was impaired, and that by reason thereof he had no funds or earning capacity.

With this evidence before the trial judge on the hearing for temporary alimony, he awarded attorney's fees in the amount of $37.50 to be paid instanter and an equal amount to be paid on the date the case was tried before a jury. No other alimony was awarded. On his failure to pay the $37.50, a citation for contempt was served, and on the hearing he was adjudged in contempt of court. "Temporary alimony is awarded to the wife, among other things, for the purpose of enabling her to contest all of the issues between herself and her husband in a proceeding for divorce and alimony." Twilley v. Twilley, 195 Ga. 297 (24 S.E.2d 46). Where a judgment provides that attorney's fees be paid to the attorney of record, such a provision will be construed as a judgment for the wife for the amount stated, and such payment may be enforced by contempt proceedings. Blackburn v. Blackburn, 201 Ga. 793 (1) (41 S.E.2d 519). Temporary alimony is in the discretion of the trial judge. Hightower v.Hightower, 202 Ga. 643 (44 S.E.2d 116).

The only issue at the hearing of a rule for contempt on account of a failure to pay the temporary alimony awarded is the ability or inability of the husband to make the delinquent payments. West v. West, 199 Ga. 143 (1) (33 S.E.2d 292);Arnold v. Arnold, 195 Ga. 304 (1) (24 S.E.2d 12). Having awarded the temporary alimony in the instant case, at which hearing the husband sought to establish an inability to pay any alimony, and on the hearing for contempt the evidence by the husband as to his ability to pay being the same as on the hearing for temporary alimony, there was no abuse of discretion of the trial judge in holding the husband in contempt of court.

Judgment affirmed. All the Justices concur.