Opinion
19666.
SUBMITTED APRIL 9, 1957.
DECIDED MAY 13, 1957.
Divorce. Before Judge McWhorter. Chatham Superior Court. January 23, 1957.
Edward J. Goodwin, for plaintiff in error.
Pierce Ranitz, contra.
1. Habitual intoxication under our law as a ground for divorce means exactly what it says. Code § 30-102 (9). The testimony that the husband was "drunk" or "under the influence of liquor" on one occasion prior to the separation is wholly insufficient to sustain a divorce on the ground of habitual intoxication.
2. Cruel treatment as a ground for divorce "shall consist of the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb or health." Code § 30-102 (10). In the present case the evidence showed nothing more than rudeness, inconsideration, and an occasional evidence of temper, which resulted from the husband's conclusion as to some misconduct on the part of the grown daughter of the parties. The testimony of the daughter and the wife wholly fails to show any wilful infliction of pain upon the wife by the husband, either bodily or mental, such as to justify an apprehension of danger to life, limb, or health. Ring v. Ring, 118 Ga. 183
(44 S.E. 861, 62 L.R.A. 878); Brown v. Brown, 129 Ga. 246 ( 58 S.E. 825); Stoner v. Stoner, 134 Ga. 368 ( 67 S.E. 1030); Black v. Black, 149 Ga. 506 ( 101 S.E. 182); Wilkinson v. Wilkinson, 159 Ga. 332 ( 125 S.E. 856); Ewing v. Ewing, 211 Ga. 803 ( 89 S.E.2d 180).
3. Where the prayers for temporary and permanent alimony are not based on the ground that the parties are living in a bona fide state of separation, but are incidental to a cross-bill for divorce, and the evidence is insufficient to sustain the divorce granted on the cross-bill, the decree awarding permanent alimony, and the subsequent order granting additional attorney's fees, are without legal force and effect. Stoner v. Stoner, 134 Ga. 368, supra; Black v. Black, 149 Ga. 506, supra; Brightwell v. Brightwell, 161 Ga. 89 (2) ( 129 S.E. 658); Meadows v. Meadows, 161 Ga. 90 ( 129 S.E. 659); Mullally v. Mullally, 199 Ga. 708, 709 (3) ( 35 S.E.2d 199); Harmon v. Harmon, 209 Ga. 474 ( 74 S.E.2d 75).
Judgment reversed. All the Justices concur.
SUBMITTED APRIL 9, 1957 — DECIDED MAY 13, 1957.
Royal Stimpson filed a petition for divorce against Lula Stimpson on the ground of desertion. It was alleged that, although the parties were living in the same house, the husband had been denied his marital rights for a period of over two years, and that such action on the part of the wife amounted to desertion under the law.
The wife filed a cross-action for divorce on the grounds of habitual intoxication and cruel treatment. She prayed for a total divorce; for temporary and permanent alimony; for a division of the property acquired by the parties during their marriage; and for attorney's fees.
The jury on the trial of the cause returned a verdict for the wife on her cross-bill, and granted the right to both parties to remarry. The verdict granted permanent alimony in the sum of $50 per month until such time as the wife might die or remarry, and awarded "the one-half interest of the plaintiff in the house" to her. The verdict was made the judgment of the court.
The husband filed a motion to set aside the verdict and judgment. His motion was filed prior to the act of March 6, 1956 (Ga. L. 1956, p. 405), amending Code § 30-101. The wife field a motion to dismiss the motion of the husband, on the ground that the motion as amended did not set forth any valid ground for setting aside the verdict and judgment. A motion was filed reciting that it had been necessary for the wife to re-employ counsel to resist the motion to vacate and set aside, and that additional attorney's fees should be awarded to her counsel of record. A rule nisi on the motion of the wife for additional counsel fees was entered.
The motion to vacate and set aside the verdict and judgment was denied. Within the time allowed by law, the husband filed his motion for new trial, and a rule nisi was issued. In the order denying the husband's motion for new trial, $200 additional attorney's fees were allowed to the wife for her counsel of record in connection with the motion to set aside the verdict and judgment, and the motion for new trial. It was further ordered that, in the event the husband should appeal from, or except to, the judgment denying his motion for a new trial, $250 additional attorney's fees "for the wife's counsel of record be, and is hereby, allowed, . . ."
In his bill of exceptions, the husband assigns error on the order denying his motion for new trial, and on the order denying his motion to vacate and set aside, and to the judgment awarding additional sums as attorney's fees subsequently to the verdict and decree in the divorce case.