Opinion
20641.
SUBMITTED SEPTEMBER 17, 1959.
DECIDED OCTOBER 13, 1959. REHEARING DENIED NOVEMBER 4, 1959.
Equitable petition. Fulton Superior Court. Before Judge Alverson. July 6, 1959.
Oze R. Horton, for plaintiff in error.
Cecil D. Franklin, contra.
The petition failed to state a cause of action against any resident of the county, and the general demurrers were properly sustained.
SUBMITTED SEPTEMBER 17, 1959 — DECIDED OCTOBER 13, 1959 — REHEARING DENIED NOVEMBER 4, 1959.
Mrs. Elizabeth H. Davenport brought a petition in Fulton Superior Court against William Luther Davenport, Sr., and Bonnelle Davenport Young, residents of Polk County, and Pauline Davenport and William Luther Davenport, Jr., residents of Fulton County. Her petition as amended alleged: The defendants are, respectively, husband, daughters, and son of the petitioner. The petitioner has been unable to work at a suitable job to earn a living because of her physical ailments, and she is destitute. Her son, William Luther Davenport, Jr., earns approximately $16,500 per year, and has a good home. Her daughter, Pauline Davenport, earns approximately $400 per month, and is unmarried and without dependents. Her daughter, Bonnelle Davenport Young, who has recently married, but has no dependents, earns approximately $350 per month. Her husband, William Luther Davenport, Sr., fails and refuses to support her in any way, even though he owns a one-half interest in a lumber business, from which he earns approximately $600 per month, and owns considerable realty. She is the legal wife of William Luther Davenport, Sr., who abandoned her in 1948, and has required her to seek her own livelihood since that time. She has attempted to secure help from the Welfare Department in Atlanta and Fulton County, but was refused assistance because she has relatives of sufficient ability to support her, and they refused to answer inquiries sent them by the Welfare Department. All of the defendants are of age, and they are jointly and severally liable for the petitioner's support. She has been due such support since 1948. All of the defendants fail and refuse to assist her, although they are all amply able to give her pecuniary aid, as well as a home. Her needs are immediate and pressing, she is without means of support, and unless provision is made by proper order of court for her support from the income and estates of the defendants, she will become a charge upon Fulton County. She is entitled to an allowance of $200 per month from the income and estates of the defendants, and it is their duty to support and maintain her under Code § 23-2302. She is without a complete and adequate remedy at law, and it is necessary that a court of equity take charge of the case to do immediate and adequate justice to her and to prevent a multiplicity of suits.
She prayed for a judgment against the defendants, jointly and severally, for $20,000 for past support due her, and for $200 per month for present and future support; and for such other relief as she may be entitled to in law and in equity.
The renewed general demurrers of the defendants were sustained, and the petition was dismissed. The exception is to that judgment.
Code § 23-2301 provides: "No person shall be entitled to the benefits of the provision for the poor who is able to maintain himself or herself by labor or who has sufficient means. In cases where females are unable to maintain themselves and the helpless children they may have, they may be aided to the extent required in the furnishing of food, clothing, or shelter." Code § 23-2302 provides: "The father, mother or child of any pauper contemplated by the preceding section, if sufficiently able, shall support such pauper. Any county having provided for such pauper upon the failure of such relatives to do so may sue such relatives of full age and recover for the provisions so furnished."
The petitioner in the present case brings her action under the provisions of § 23-2302, and relies on Citizens Southern Nat. Bank v. Cook, 182 Ga. 240 ( 185 S.E. 318), in which that section was cited, wherein this court held: "Where the guardian of a World-War veteran adjudged incompetent received from the U.S. Veterans Administration $100 per month as compensation for the ward, this amount being based on the fact that his mother was dependent on him for support, and that without such dependent the amount would be $15 per month, a decree awarding to his mother (a widow of sixty-eight years and without other means of support and maintenance) $75 per month from the $100, as long as it should be so received and during her dependency, was legal." The facts indicated in this ruling from Citizens Southern Nat. Bank v. Cook, supra, clearly show that it has no application to the present case.
The petitioner alleges that she is the legal wife of William Luther Davenport, Sr., one of the defendants, that he abandoned her in 1948, and that he has ample means to support her. "Marriage imposes upon a husband the legal obligation to provide means for the maintenance of his wife; and, if she be separated from him by reason of his misconduct, this creates a responsibility on the part of the husband to provide maintenance and support of the wife in keeping with his ability and suitable to her condition and habits of life while living with him, which is a lawful demand, and which when legally enforced is called alimony. Code §§ 53-508, 53-510; Jenkins v. Jenkins, 69 Ga. 483; Forrester v. Forrester, 155 Ga. 722 ( 118 S.E. 373, 29 A.L.R. 1363); Wood v. Wood, 166 Ga. 519 (2) ( 143 S.E. 770)." Fried v. Fried, 208 Ga. 861 (4) ( 69 S.E.2d 862).
When a married woman has a husband who is financially able to support her, he is primarily liable for her support. Code § 53-510; Akin v. Akin, 163 Ga. 18 (5) ( 135 S.E. 402); 70 C.J.S., 106, § 60 (e 3). Since the allegations of the petition show the legal right of the petitioner to have support from her husband, the petition fails to show that she has any legal right of support from her children. However, we do not pass on the question as to whether or not the duty of supporting indigent parents which the law declares to be in adult children with sufficient means (Code § 23-2302 and Code, Ann., § 99-627; Ga. L. 1951, p. 691) might be enforced in such an action as the present one, should it be made to appear that the duty of the husband to support the wife can not be enforced.
If the petition in the present case be considered as an action for alimony against the defendant husband, it is not brought in the county of his residence, and the court would be without jurisdiction of the cause. Since the petition failed to state a cause of action against any resident of the County of Fulton, the trial judge properly sustained the general demurrers of the defendants. Seckinger v. Citizens Southern Nat. Bank, 213 Ga. 586 ( 100 S.E.2d 587).
Judgment affirmed. All the Justices concur.