Weeks v. Weeks , 160 Ga. 369 ( 1925 )

Hines, J.

(After stating the foregoing facts.)

Temporary alimony was granted to the wife under section 2986 of the Civil Code. To have authorized the grant of this alimony the husband and wife must have been living separately or in a bona fide state of separation. What effect did the subsequent voluntary cohabitation of the husband and wife have upon the judgment awarding the wife this alimony? An order allowing alimony is subject to revision by the court at any time. Civil Code (1910), § 2978. The authority of the court to revoke or modify an order granting temporary alimony is not confined to cases in which there has been a change in the condition or circumstances of the parties since the granting of the order. Jennison v. Jennison, 136 Ga. 202 (71 S. E. 244, Ann. Cas. 1912C, 441). It follows that the authority of the court to revoke or modify such order is much stronger where the ground on which alimony was granted has ceased to exist. “The subsequent voluntary cohabita-' tion of the husband and wife shall annul and set aside all provision made, either by deed or decree, for permanent alimony.” Civil Code (1910), § 2990. So it has been held that “An agreement for a separation will be rescinded, if the parties afterwards cohabit or live together as husband and wife, by mutual consent.” Chapman v. Gray, 8 Ga. 341 (3). Eeconciliation of the parties, followed by cohabitation which continues at the time the motion for temporary alimony is heard, will defeat the application. Fullhart v. Fullhart, 109 Mo. App. 705 (83 S. W. 541). So if, after such alimony was granted to the wife when she and her husband were living separately or in a bona fide state of separation, which fact alone would have authorized the court to grant this alimony, the wife and husband subsequently and voluntarily cohabited, the effect of their subsequent voluntary cohabitation would be to annul and set aside all provision made by the order or decree of the court granting the same to the wife. If subsequent voluntary cohabitation of the husband and wife has the effect of annulling and setting aside all provision made by decree for permanent alimony, we see no reason why it would not have the same effect upon an order or decree granting temporary alimony to the wife. The greater would include the lesser.

It has been held that, while it furnishes good ground for not granting a divorce, if urged, condonation does not ipso facto void a divorce. McLeod v. McLeod, 144 Ga. 359 (87 S. E. 286); Harn v. Harn, 155 Ga. 502 (117 S. E. 383). Whether, after a wife is granted temporary alimony under section 2986 of the Civil Code, subsequent voluntary cohabitation of the husband and herself will ipso facto annul and set aside provision made by order of the court for permanent alimony, is not now for decision by this court. The husband sought by direct proceeding in the court granting this order to have the same reviewed and revoked, and to have himself relieved from the further payment of temporary alimony to the wife thereunder. What we hold is that such subsequent voluntary cohabitation of the husband and wife authorized and required the court to annul and set aside all provision made by this order- for temporary alimony to the wife.

The evidence before the judge upon the hearing of the husband’s motion to revoke the order granting the wife temporary alimony was such as to demand a finding, as against the wife, that she and her husband had, subsequently to the granting of this order, voluntarily cohabited. This being so, the learned judge erred in not granting an order relieving the husband from the payment of future temporary alimony to the wife under said order.

The third and fourth headnotes need no elaboration.

Judgment reversed.

All the Justices concur.