HEWLETT v. HEWLETT., 220 Ga. 656, 140 S.E.2.d 898 (1965)
Linked as:
Summary
Judgment affirmed with direction. All the Justices concur.
Summary
Judgment affirmed with direction. All the Justices concur.
Text
Florence Hewlett Dendy, for plaintiff in error.
The wife brought an action in Fulton Superior Court against her husband seeking divorce, custody of minor children, temporary and permanent alimony, and attorney's fees. The court, after hearing, entered an interlocutory order awarding temporary custody of the children to the wife, temporary alimony to the wife for herself and children, and attorney's fees, on account, to the wife's attorney. The husband filed a motion to set aside the judgment of the court on the ground that the court was without jurisdiction of the case, since he was not a resident of Fulton County, but of Cherokee County at the time of filing the suit and at all times since. The trial court entered an order reciting that he had reviewed all the evidence submitted in the case, and denied the motion to set aside the judgment. The exception is to this order. Held:
1. The first question presented is whether the court erred in granting temporary alimony, custody of the minor children, and attorney's fees in view of the question raised as to jurisdiction of the court. The court heard testimony as to jurisdiction of the court, and concluded that even under defendant's testimony it could not reasonably be said that the issue of jurisdiction is eliminated as an issue in the case. As to defendant's contention that he was not a resident of Fulton County when the suit was filed, the evidence, considered most favorably to him, was conflicting. Under such circumstances this court has consistently held that it is not erroneous to award temporary alimony and attorney's fees. See Carnes v. Carnes,
(b) Awarding use of the home to the wife, requiring the husband to keep up the premises, pay taxes and insurance thereon and on her automobile, and requiring him to pay doctors' and dental bills, and school expenses are all without question items of support of the wife and children pending the divorce proceeding. Temporary alimony is an allowance out of the husband's estate for the support of the wife and children when living separate from him. Code 30-201, 30-206. No exact form of support is prescribed. The exceptions to those items are without merit.
(c) Item 4 (d), which ordered defendant to pay for the use and benefit of plaintiff and the children of the marriage promptly when due "all bills outstanding on this date (date of order, July 27, 1964) whether the purchases were made by petitioner, the children, or the defendant," is excepted to. This order is vague and indefinite. If it proposes to require the defendant to pay all of his bills outstanding as of the date of the order, which it seems to do, that would go beyond the scope of the court's authority in making an award of temporary alimony. Payment of his bills could not conceivably be an allowance out of the husband's estate for the support of the wife and children. The portion of the order that he pay all bills for purchases by wife or children, without evidence as to what bills this includes, whether necessaries or not, is too uncertain and indefinite to be enforced. This could include bills for which the husband would not be liable under the law.
The attack of the husband upon Section 4 (d) of the order is meritorious, and the court is directed to strike this provision from its judgment.
(d) The attack upon paragraph 4 (f) of the order providing that, if the defendant sees fit to make available to any member of his family the use of the clubs to which he belongs, his wife and children may also use them and he shall pay all bills incurred by them is meritorious.
While the court is authorized to require the husband, if financially able, to maintain his wife and children in the same station in life to which they were accustomed, this does not mean that they should have unlimited and unbridled authority to incur bills at private clubs to be charged to him. The effect of such order could be to require the husband to raise their station in life and furnish them luxuries to which they were not accustomed and which he was unable to afford. The imposition of this obligation to pay all their bills at the clubs, if he permits any of them use of the clubs, is arbitrary and unreasonable and is too indefinite, uncertain, and unlimited as to the amount he would be required to pay. He could control the expenditures of those using the clubs with his permission, but there would be no limit on the expenditures of the other members of the family.
The judge is directed to strike this provision of his order.
3. The award of $1,000, on account, for legal services to the wife's attorney is not excessive, considering the ability of the husband to pay, the needs of the wife, the amount of work involved in the preparation and trial of the case, and the responsibility resting upon her counsel.
4. Paragraphs 4 (d) and 4 (f) of the court's order of July 27, 1964, are erroneous, and the trial judge is directed to strike them. With these paragraphs stricken, the judgment of the trial court is affirmed.
Powell, Goldstein, Frazer & Murphy, James K. Rankin, contra.
1965
Sponsored links
