Hawes v. Hawes

Crawford, Justice.

This writ of error originated in a petition for temporary alimony, upon which the judge allowed the wife, upon the case made before him, $145.00 in cash, $12.50 a month until otherwise ordered, and the further sum of $30.00 for counsel fees. This proceeding arises under an act of the legislature of 1870, and incorporated in §1747 of the Code. That section provides: “ When husband and wife are living separately, or are bóna fide in a state of separation, and there is ho action of divorce pending, the wife may institute a proceeding by bill or petition on the equity side of the court, setting forth fully her case, and upon three days’ notice to the husband, the judge may hear thessame in term or vacation, and grant such order as he might grant were it based on a pending libel for divorce, * * * and should such proceeding proceed to a hearing before a jury, they shall decree as provided by §1746 of this Code for such cases.”

The 1746th section and its references, declare that in cases of voluntary separation, or where the wife is abandoned or driven off by the husband against her will, the husband may make, by voluntary deed, adequate provision for her, consistent with his means and her former circumstances, which shall be a bar to her right to permanent alimony.

So that in view of the fact that the respondent admitted in his testimony that he “ asked her what she wished me to do, she stated, she wanted me to let her stay at her ■sister’s, and for me to support her. I replied I would, and would do what was right,” etc., he thereby brought himself within that liability which exists where there is a voluntary separation between the parties. Had this agreement never been made, and he had stood upon his legal rights and obligations under the other facts of the case as disclosed by the record, his liability would have *145 been governed by section 1740 of the Code, as construed by this court in 38 Ga., 663 .

Notwithstanding, however, this agreement, the testimony does not show that the judge took into consideration the separate estate owned by th'e wife, in fixing the amount of the alimony, for its present value or annual income is nowhere shown, as compared with the husband’s, and his obligation to support the other members of his family, which we think he should have inquired into before putting the entire burden of the wife’s support upon the estate of the husband. Code, §1738.

Our judgment, therefore, is that the case' be remanded for a new hearing before the judge, and that inquiry be had as provided in the above section of the Code, for the wife’s temporary alimony, until a final hearing and decree may be had, as provided by section 1746, unless the husband shall make the same unnecessary by complying with section 1745 of the Code.

Judgment reversed.