Kendrick v. Kendrick

Little, J.

“Alimony is an allowance out of the husband’s estate, made for the support of the wife when living separate from him.” Civil Code, §2456. And “on the hearing of an application for alimony pending a libel for divorce by the husband against the wife, the fact of the marriage and the ability of the husband to support his wife as she had been accustomed to live'with him, were controlling questions.” Jenkins v. Jenkins, 69 Ga. 483 . Counsel fees áre. allowed as a part-of her necessary maintenance. On the hearing of an application for temporary alimony, the merits of the cause are not in issue. Civil Code, § 2460. These are the plain mandates of the law, instituted to protect the wife. They arise from the necessity of the case, and for the purpose of ensuring her a support and maintenance pending litigation; and when she is without *40 separate property, this necessary .maintenance is to he provided by him' who alone is charged by law with her support. These principles are alike applicable where suits for' divorce-have been instituted by either husband or wife, and such provision for her support should be continued until, after legal inquiry, the facts on which the application for divorce is predicated have been determined by the jury and the marriage relation, which is not to be lightly entered into by any man, shall have been dissolved. In the present case a libel for divorce was-instituted by the husband, the grounds of which the record does-not disclose. The institution of the action was followed by an application by the wife for the allowance of temporary alimony and a reasonable sum as fees of her counsel to defend the divorce suit and procure an order for alimony. An allowance foreither purpose was refused by the presiding judge after hearingthe evidence of the wife as to thé facts of the separation, and-of counsel as to the amount necessary to procure proper representation for her defense of the action for divorce. In so refusing, under the facts as they appear in theffecord, we think the court erred. It is true that the wife testified she had been a prostitute and the inmate of a house of ill fame in the city off' Atlanta prior to her marriage with the defendant; but it is also-true that she testified that he knew these facts, visited her and cohabited with her, prior to the marriage. It is true that she' testified that, at Christmas succeeding their marriage and preceding the suit for divorce, she became intoxicated from drinking whisky, tore off her clothes, and was carried to bed by her' husband and another man; but it is also true that she testified' that,' after this and until the month of April succeeding, he kept-her in his home and lived with her as his wife, and that it was-only after her return from a visit, during the latter month, that the door of her husband’s home was barred to her entrance. Eor 'what? If it was because she had been a prostitute before-her marriage, who knew it better than he when from her immoral surroundings he took her for better or for worse ? When he gave her his name and made her his wife, he had a right to-do so. With questions of taste in this regard the law does not-interfere, but holds the -husband, even under such circum *41 stances, to the obligations into which he has entered to support and maintain her if he is able, and it is only for her improper acts occurring since he assumed that obligation, which he has not condoned, that he will be relieved of this duty, if she is in a dependent condition. It is true that her conduct at Christmas' afforded a reason sufficient to have excluded her from any decent home, but if,, with a full knowledge of her conduct, he continued to live with her, he had a right also to do this; but in exercising that right, he put the past behind him and could look only to her future misconduct for a legal cause of complaint. Civil Code, §2429.

' A judgment rendered on an application for temporary alimony involves the exercise of a judicial discretion; and it is provided that “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.” Civil Code, §2460. Now we are to ascertain what the cause and circumstances of the separation were from the evidence alone of the wife, because she was the only witness examined on this point. She testified that there was no cause for the separation, and the circumstances were that she was denied entrance to her husband’s home after a visit to her mother, M which visit the husband had knowledge. We do not know ihat these things are true. Possibly the presiding judge may not have thought them to be so; but if he did not, then the evidence was silent as to the cause and circumstances of the separation, and such being the case, the temporary alimony and allowance for counsel fees must be granted, under the statute, as the judge is only authorized to refuse to grant alimony when the cause and circumstances of the separation are such as to make it proper that none should be allowed in the exercise of a sound judicial discretion. We are of the opinion that, under the proof submitted, the application for temporary alimony and an allowance for counsel fees should have been granted.

Judgment reversed.

All the Justices concurring.