Webb v. Webb

Russell, C. J.

1. The trial judge did not err in omitting to sustain the general demurrer to the plaintiff’s petition for alimony, even though the omission to pass upon it be construed as equivalent in effect to an order overruling it. Under section 2986 of the Civil Code of 1910, providing for a proceeding for alimony before the judge, the petition in the instant case was sufficient to withstand the general demurrer.

2. Under that section the judge of the superior court is authorized to grant such order providing' a support for the wife and minor children, if any, of the defendant husband “as he might grant were it based on a pending libel for divorce, provided the husband and wife are living separately and there is no action for divorce pending.” The code looks to requiring the husband and father to perform his duty of supporting the wife and children; and it is not necessary to allege, with such strictness as would be required in a libel for divorce, such facts as would authorize the grant of a divorce. It is expressly provided in section 2979 that on an application for temporary alimony the merits of the cause are not in issue, other than that the judge in fixing the amount of the alimony may inquire into the cause and circumstances of the separation rendering the alimony necessary, and in a proper case may refuse alimony altogether.

3. In the judgment under review in this case the alimony granted was temporary. In such a cause the judge is the exclusive trior of the evidence, and the exercise of his discretion as to the credibility of the witnesses in case of conflict, or as to the sufficiency of the evidence, will not be disturbed unless there is a manifest abuse of discretion. So far as appears from the record, there was no abuse of discretion in the judgment for alimony and attorney’s fees in the present case.

Judgment affirmed.

All the Justices concur.