Pelot v. Pelot , 193 Ga. 316 ( 1942 )

Where husband and wife are living separately, and no action for divorce is pending, and the wife has instituted against the husband a suit for permanent alimony, it is not illegal for the judge on her application, after the required notice to the husband, to grant temporary alimony. Properly construed, the petition in the instant case was not an independent suit for temporary alimony, but in substance a proceeding of the character indicated above.

No. 13986. JANUARY 14, 1942. In April, 1938, Mrs. Lavalle Pelot filed suit in Fulton superior court against Joseph F. Pelot Jr., alleging that he was a resident of Fulton county; that she and he were married in December, 1936, and lived together as husband and wife until April, 1937, when they separated and have since lived apart in a bona fide state of separation; that he had made no contribution for her maintenance and support; that he was young, capable, able, employed, and earning $25 a week or more; that she "brings this suit for alimony, and prays that she be awarded just such sum as will appear equitable and just upon the investigation of this her petition." She prayed for process requiring him to show why her prayer should not be granted and why she should not be awarded alimony for her maintenance and support. The defendant was served on May 2, 1938. On May 27, 1938, the plaintiff amended her petition by adding after the prayer the words: "and a reasonable attorney's fee for the prosecuting of this suit."

On May 27, 1938, one of the judges of Fulton superior court, on hearing the petition, passed an order awarding to the plaintiff $2.50 per week "until further order of the court," for her maintenance and support, and that the defendant pay to the plaintiff's attorney a fee of $25 at the rate of $3 per month.

No answer, demurrer, or plea appears to have been filed by the defendant until September, 1941, more than three years after the judgment referred to above, when he filed a plea asserting that said judgment was a mere interlocutory order for the payment of temporary alimony, and not one for the payment of permanent alimony; that he did not acquiesce in said order; that upon applications of the plaintiff two executions against him had been issued, based on said award of alimony, these aggregating several hundred dollars; that plaintiff is threatening to have levies, garnishments, attachments, etc., issued against him, and unless she be enjoined he will suffer irreparable loss. He prayed that the judgment and executions be set aside and canceled. On September 15, 1941, he filed his general demurrer to the petition for alimony. On September 29, 1941, the court overruled the motion to set aside the judgment and executions, and overruled the demurrer; and the defendant excepted. No suit for divorce was pending; and the exceptions to the rulings complained of are well taken unless the petition, as against a general demurrer, is to be construed as a proceeding for permanent alimony, since temporary alimony can not be granted unless there be pending either a suit for divorce or a proceeding for permanent alimony. Stallings v. Stallings,127 Ga. 464, 467 (56 S.E. 469, 9 L.R.A. (N.S.) 593); King v.King, 128 Ga. 54 (57 S.E. 227); Stalvey v. Stalvey,132 Ga. 307 (64 S.E. 91). Temporary alimony was granted, and the real question before us is as to the nature of the petition on which the judge acted. Neither the word "temporary" nor "permanent" appears therein, although the petition alleges that "she brings this suit for alimony and prays that she be awarded just such sum as will appear equitable and just upon the investigation of this her petition." It is addressed to the superior court of the county, contains averments necessary and proper in a proceeding for permanent alimony, prays for process, and calls on the husband to show cause why her prayers should not be granted, and why she should not be awarded alimony for her maintenance and support. Process was issued and served. Her suit was amended by adding after the prayer these words: "and a reasonable attorney's fee for the prosecuting of this suit." The plaintiff in error relies on the three cases next hereinafter referred to, but in our opinion they are not decisive of the issue arising under this record. In Pitts v. Pitts, 144 Ga. 423 (87 S.E. 391), there was not only no prayer for process, but the petition was addressed to the judge by name. She stated the necessity for an injunction to restrain the husband from disposing of his property, and prayed that "your honor require [him] to pay over to her, to be used for her support, such sums of money, and at such times as may be deemed proper; . . and that such other proceedings may be had as are provided by law." The petition was demurred to generally and specially. Here we deal only with a general demurrer. In Combs v. Combs, 146 Ga. 112 (90 S.E. 862), the allegations were similar to that in Pitts v. Pitts, supra, except that relating to the injunction feature, the prayer being "that the allegations therein be inquired into, and, if it should appear upon the hearing, that your honor require said Alonzo Combs to pay over to her or some suitable person, to be used in support of herself and the said child, such sums of money, and at such times as may seem meet to your honor; and that such other proceedings be had as are usual in such cases, and are prescribed by law." In Wilson v. Wilson, 170 Ga. 341 (153 S.E. 10), the petition was addressed to the judge (naming him), and not to the court. The prayer was similar to that in Combs v. Combs, supra. Though process was attached, none was prayed for. As in the other two cases, it is to be noted that the application was not to the court, but "that your honor require," etc., "such sums of money and at such times as may seem meet to your honor," etc.

That the alimony here awarded was temporary alimony adds no strength to the argument that the alimony referred to in the suit meant temporary alimony only. Both the temporary award by the judge pending the action and the amount fixed by the jury on the final trial are alimony. Each is an allowance out of the husband's estate, made for the support of the wife when living separate from him. Code, § 30-201. This procedure was the appropriate one if the suit was one for permanent alimony, since the statute expressly provides that upon three days notice to the husband the judge may grant such order as he might grant were it based on a pending petition for divorce. A petition need not possess all of the excellencies of good pleading in order to withstand attack by general demurrer. If in substance it meets the requirements, that is sufficient. It may be that the pleader could have stated her purpose with more clearness, but she alleged all the facts necessary in a suit for permanent alimony; and a reasonable construction of the allegations and prayers leads to the conclusion that such was the intention of the pleader. It follows that the general demurrer was properly overruled, and that it was not erroneous to overrule the motion to vacate and set aside the judgment awarding temporary alimony and attorney's fees.

Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents.