Wood v. Wood , 166 Ga. 519 ( 1928 )

Hines, J.

1. When husband and wife are living separately, or are bona fide in a state of separation, and there is no action for divorce pending, the wife may, in behalf of herself and her minor children, institute a proceeding by petition setting forth fully her case; and upon three days notice to the husband, the judge may hear the same in term or vacation, and grant such order as he might grant were it based on a pending libel for divorce, to be enforced in the same manner, together with any other remedy applicable in a court of equity, such as appointing a receiver and the like; and should such proceeding proceed to a hearing before a jury, they shall decree as provided in section 2985 of the Civil Code for such cases, but such proceeding shall be in abeyance when a , libel for divorce shall be filed bona fide by either party, and the judge presiding shall have made his order on the motion for alimony, and when so made such order shall be a substitute for the aforesaid decree in equity, as long as said libel shall be pending and not disposed of on the merits. Civil Code, § 2986.

2. Marriage imposes upon a husband the legal obligation to provide means for the maintenance of his wife; and his abandonment of her, and his wilful failure to provide for her maintenance and support, creates a liability on his part to the wife, which is a lawful demand, and which, when legally enforced, is called alimony. Forrester v. Forrester, 155 Ga. 722 (118 S. E. 373, 29 A. L. R. 1363).

3. Where plaintiff and her husband separated on September 15, 1923, and on that date the husband executed and delivered to his son a deed to a house and land where he and his wife had resided, the same constituting all of his visible property, with or without consideration, which deed was made and accepted to enable the father to put his property beyond the reach of any claim which his wife might have for support and alimony, the wife could maintain a petition in equity against the father and the son, in which she sought to recover temporary and permanent alimony, to cancel the deed, and to have a receiver appointed to take charge of the property so conveyed, and apply the rents thereof to her claim for alimony. Gray v. Gray, 65 Ga. 193; Parker v. Parker, 148 Ga. 196 (96 S. E. 211); Donalson v. Bridges, 162 Ga. 502 (134 S. E. 302). The wife can maintain such proceeding notwithstanding the fact that no divorce proceeding and no suit for temporary or permanent alimony was pending at the time of the execution of said deed. Chandler v. Chandler, 161 Ga. 350 (130 S. E. 685).

4. In view of the above rulings, the petition set forth a cause of action against the husband and his son; and the court erred in sustaining the general demurrer.

5. A stepfather, as such, is not under obligation to support the children of his wife by a former marriage; but if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumes an obligation to support them, and likewise a correlative right to their services. Where, however, the stepfather and his wife separate, and the stepfather no longer keeps a minor daughter of his wife under his care, he is no longer under obligation to support such minor child; and in an application for alimony the wife will not be entitled to recover alimony for and on account of such minor child who had previously lived with the stepfather as a member of his family before he and his Wife separated. Brown v. Sockwell, 26 Ga. 380, 387; Marshall v. Macon Sash &c. Co., 103 Ga. 725 (30 S. E. 571, 41 L. R. A. 211, 68 Am. St. R. 140) ; 20 R. C. L. 594, § 10, and note 1. While under the above ruling section 17 of the petition was subject to demurrer and should have been stricken, this did not authorize the court below to sustain a general demurrer to the petition as a whole and dismiss the same.

No. 6513. June 13, 1928.

6. Under the Civil Code (1910), § 3416, the existence of facts necessary to constitute a valid exemption need not affirmatively appear from the face of the schedule of exempt property filed with the ordinary, but such facts must actually exist. Kimsey v. Rogers, 166 Ga. 176 (142 S. E. 667).

(a) It not affirmatively appearing from the schedule that the house and land embraced therein exceeded in value $500 when the schedule was filed, and it affirmatively appearing from the petition in this ease that the same was about of the value of $400, we can not say as a matter of law that the exemption of this property was void for the reason that the value of the house and land embraced in the schedule, and situated in a village, exceeded in value said amount at the time the schedule was filed, notwithstanding the allegation of the petition that the property exempted, consisting both of the house and land, and personalty, cost $700, and notwithstanding the fact that the deed from the father to the son, which the wife seeks to have canceled, purports to be based upon an alleged consideration of $700, the petition alleging that said deed was in fact without any valuable consideration, and it further appearing that the same was executed some time after the schedule was filed.

(h) Even if the homestead was void, so far as the house and land are concerned, for the reason that their value exceeded $500 at the time the schedule was filed, this fact would not render the petition subject to general demurrer; the plaintiff, while alleging the existence of the homestead, not asserting any rights thereto under her petition in this case.

7. While, as a general rule, all demurrers should be filed at the first or return term of the court, yet in actions at law or in equity, when a declaration does not set forth a canse of action, a demurrer, or an oral motion to dismiss the ease in the nature of a general demurrer, may be filed at any time before the verdict. Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280). Grounds of special demurrer to a petition are not good unless set forth in writing and filed at the first term. Calhoun v. Mosley, 114 Ga. 641 (2) (40 S. E. 714).

Judgment reversed.

All the Justices concur. P. D. Rich, for plaintiff. W. I. Geer, for defendants.