Opinion
16905.
JANUARY 11, 1950.
Alimony. Before Judge Whitman. Fulton Superior Court. August 16, 1949.
Sam G. Dettelbach, for plaintiff in error.
George Carroll and Douglas, Evans Cole, contra.
1. Where an agreement between the parties as to the amount of temporary alimony is made the judgment of the court, and subsequently the husband files a petition to modify the award, based on a change in conditions, and upon a hearing on the rule nisi the court awards a judgment for a different amount, such judgment is "granting or refusing applications for alimony" under the Code, § 6-903, and a motion to dismiss the writ of error is denied.
2. While there is no mathematical formula for determining the amount of alimony to be awarded, and the trial judge has a wide discretion in fixing temporary alimony, and in subsequently modifying the same as provided in Code § 30-204, yet, under the evidence in the instant case, the award of $250 per month, where the income of the husband was $350 per month, was excessive and an abuse of discretion.
Judgment reversed. All the Justices concur.
No. 16905. JANUARY 11, 1950.
Rebecca Griffin Williams filed against James Sidney Williams a petition for divorce, temporary and permanent alimony, and custody of a minor child. On the hearing of the rule nisi, by agreement between the parties, the court on September 27, 1948, granted a judgment for temporary alimony, giving to the wife $20 per week, for the support of the child $20 per week, house rent for the wife and child $85 per month, payment of outstanding balance due on furniture, and basic-utilities bill incurred, by the wife.
On June 6, 1949, the husband filed a petition to modify and reduce the judgment for temporary alimony. On this petition a hearing was had on September 16, 1949. The husband testified that at the time of entering into the agreement, resulting in the judgment of September 27, 1948, to pay the temporary alimony, which amounted to $272 per month, he had shortly before then engaged in a new business in which he anticipated profits sufficient to meet the terms of the judgment, but the expected profits had not materialized. The evidence showed that his total income for the ten months, less bad debts, was $6306.12, and operating expense, not including taxes, of $2800, which would make his net earnings $3506.12 for the ten months. There was testimony that the wife had at times, and could now, rent one of the rooms in her house for $40 per month, and that she was trained as a milliner and could have an earning capacity.
The wife testified that prior to the separation their expenses of operating the home were $434.50, and that her expenses are now $292.50; that she did not believe the statement of her husband as to his business affairs; that he had told her that, if a specified candidate for political office was elected (and he was elected), he would make $25,000; but that she did not know whether he had made that amount or any amount. On cross examination, she testified that, prior to their separation when he was furnishing $434 per month for their living expenses, he was employed by two different institutions, which employment he did not now have.
The court passed an order modifying the temporary alimony, and awarded the wife $250 per month, to which order the husband excepted.