Wester v. Martin , 115 Ga. 776 ( 1902 )

Simmons, C. J.

Suit for divorce was brought by Mrs. Wester against her husband. She applied for temporary alimony and counsel fees; and at the hearing of the application the court rendered judgment awarding her a certain sum per month and a certain sum for counsel fees. This latter was to be paid within thirty days. Subsequently the husband and wife became reconciled. The wife returned to the husband, and they again lived together as man and wife. Martin, the attorney of Mrs. Wester, applied to the court for a rule nisi against Wester, calling upon him to show cause why he should not be attached for contempt for failing to pay the attorney’s fees. The rule issued, and Wester answered that he was unable then, and had been since the rendition of the judgment, to pay the counsel fees; that he intended no disrespect to the court in failing to comply with its order, but that his poverty rendered compliance impossible. He offered to show by evidence the truth of his answer. The court rejected this evidence, struck the answer, and committed Wester to jail for contempt of court. Wester excepted.

It is the settled law in this State that an order for a husband to pay temporary alimony and counsel fees is always within the discretion and control of the court. Civil Code, § 2459. It is not a final adjudication that binds the husband so as to prevent his showing his inability to pay. The court may at any time, upon proper application and proof, change, modify, or alter the order, or even annul it altogether. The answer of Wester was sworn to, and was not traversed, and for the purposes of this argument it will be assumed to be true. Assuming this, the order of the court granting the alimony and counsel fees must have been improvidently granted, or else some change has since occurred in the pecuniary affairs of Wester so as to render the amount awarded excessive. Pinckard v. Pinckard, 23 Ga. 286, is on its facts almost identical with this. There Pinckard had been ordered to pay alimony and counsel fees, A rule was issued against him to show cause why he should not be attached for contempt in failing to comply with the order. He answered by showing his inability, on account of poverty, to pay the sum awarded. The judge made the rule absolute, and this court held that he should have reduced the sum required of Pinckard in the order granting the alimony. This case controls the case under consideration,and it follows that the judge erred in refusing to hear evidence in support of the answer, and in striking the answer. See also 1 Enc. Pl. & Pr. 437, 438. The above is on the assumption that the answer is true. Of course Martin may traverse it and show the court that it is untrue. If this is done, the court may regulate its judgment accordingly. Briesnick v. Briesnick, 100 Ga. 57, and the other cases relied upon by the defendant in error are cases wherein permanent alimony had been granted by the verdict of a jury and a judgment of the court. There is a great difference between an order - allowing temporary alimony and a verdict and judgment for permanent alimony.

Judgment reversed.

All the Justices concurring, except Lewish J., absent.