Johnson v. Johnson

236 Ga. 647 (1976) 225 S.E.2d 36

JOHNSON
v.
JOHNSON.

30899.

Supreme Court of Georgia.

Argued March 15, 1976. Decided April 7, 1976.

Houston White, Sr., for appellant.

Savell, Williams, Cox & Angel, Henry Angel, for appellee.

UNDERCOFLER, Presiding Justice.

This appeal is from the judgment of the trial court awarding temporary alimony to the wife in a divorce action filed by the husband. The husband filed the complaint for divorce on the ground of desertion in that the wife had refused to have sexual intercourse with him for a period in excess of four years. The wife filed a cross claim for divorce on the ground of cruel treatment because of habitual intoxication and "mental anguish" caused by certain acts of the complainant. After hearing evidence, the trial court awarded the use of the home, attorney fees, and $300 a month to the wife as temporary alimony.

"``On application for temporary alimony, the merits of the cause are not in issue, though the judge, in fixing the amount of alimony, may inquire into the cause and circumstances of the separation rendering the alimony necessary, and in his discretion may refuse it altogether.' Code § 30-205. And this court will not control the discretion of the judge in awarding temporary alimony and attorney's fees ``unless there is a manifest abuse of discretion.' Webb v. Webb, 165 Ga. 305 (140 S.E. 872); Brown v. Brown, 159 Ga. 323 (125 S.E. 713); Rigdon v. Rigdon, 174 Ga. 903 (164 S.E. 677)." Lybrand v. Lybrand, 204 Ga. 312 (49 SE2d 515) (1948); Bartlett v. Bartlett, 228 Ga. 541 (2) (186 SE2d 754) (1972). The evidence shows that the wife had been employed previously but is not presently employed and has no funds except $135 with which to support herself.

The evidence in this case was conflicting and this court will not control the discretion of the trial court in awarding temporary alimony.

Judgment affirmed. All the Justices concur.