Mullikin v. Mullikin

Supreme Court of Georgia1946-05-08No. No. 15468

200 Ga. 638

Summary · law.co

Holding. The judgment awarding temporary alimony and attorney's fees to the wife was reversed because her testimony failed to demonstrate cruel treatment as legally defined, and the undisputed evidence showed she abandoned her husband without just cause.

A wife sought temporary alimony and attorney's fees after separating from her husband. The trial court awarded these payments, but the husband appealed. The appellate court examined whether the wife had established grounds for separation based on cruel treatment as legally defined—intentional infliction of pain, bodily or mental, that reasonably creates fear for one's safety or health. The wife's testimony indicated she refused to live with her husband because of her pregnancy and desire to stay with her mother for support and convenience, not because of any cruel conduct by the husband.

The court held that a wife who abandons her husband without just cause is not entitled to alimony. The evidence showed the wife failed and refused to live in the home her husband provided without any justification meeting the legal standard for cruel treatment. Although the wife's reasons for temporary separation might have seemed reasonable if viewed in isolation, her subsequent decision to file for divorce and alimony without additional grounds undermined any inference that her separation was temporary or justified. The statute allowing alimony awards on temporary alimony applications does not override the fundamental principle that unjustified abandonment bars alimony.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Definition of cruel treatment as grounds for separation or divorce
Whether a wife's personal convenience and pregnancy constitute just cause for abandoning a husband
Entitlement to temporary alimony when a wife unjustifiably refuses to cohabit
Scope of judicial discretion in awarding temporary alimony absent showing of just cause

Procedural posture

The husband appealed from a judgment of the trial court granting the wife temporary alimony and attorney's fees in a divorce action.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bell, Chief Justice.

1. Cruel treatment, as ground for divorce under the Code, § 30-104, “is the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies an apprehension of danger to life, limb, or health.” Ring v. Ring, 118 Ga. 183 (44 S. E. 861, 62 L. R. A. 878).

2. “Cruel treatment which would justify a wife in leaving her husband and living in a state of separation from him, while he is willing to have her come back to his home and live with him, should have the same definition as the cruel treatment which would afford grounds for a divorce.” Durham v. Durham, 156 Ga. 454 (7), 457 (119 S. E. 702).

3. Alimony should not be awarded to a wife who. abandons her husband without just cause. Fuller v. Fuller, 108 Ga. 256 (4) (33 S. E. 865). In this case, the testimony of the wife as given on the hearing of her application for temporary alimony and attorney’s fees failed to show cruel treatment as defined above, and the evidence as a whole showed without dispute that she failed and refused to live with her husband in a home which he had provided for her, and that she did so without just cause. In these circumstances, the judge erred in requiring the husband to pay any sum to the wife as temporary alimony or attorney’s fees. Davis v. Davis, 145 Ga. 56 (88 S. E. 566); Brisendine v. Brisendine, 152 Ga. 745 (111 S. E. 22); Pace v. Pace, 154 Ga. 712 (115 S. E. 65); Perkerson v. Perkerson, 157 Ga. 589 (122 S. E. 53); Hudson v. Hudson, 189 Ga. 410 (5 S. E. 2d, 912); Carver v. Carver, 199 Ga. 352 (34 S. E. 2d, 509).

4. Whether the testimony of the wife that she refused to live with her husband because she was pregnant and wanted to stay with her mother until after the child was born, so that her mother might help wait on her, and because it was more convenient for her to live “close in town” where she could go to the doctor, might have been sufficient to show a desire on her part to live with her mother only temporarily, on account of her condition, and whether such a temporary separation from her husband would have been justified under the reasons given, if nothing else had appeared (Pace v. Pace, 154 Ga. 712 (2)), yet the fact that the suit for divorce and alimony was filed without further cause for separation (so far as shown) precludes any inference favorable to the wife upon either of such issues.

5. The Code, § 30-205, declaring that on application for temporary alimony the merits of the cause are not in issue, does not authorize the judge to award the wife temporary alimony or attorney’s fees where it appears without dispute that she abandoned her husband and refuses to live with him without just cause. Compare Barnett v. Barnett, 191 Ga. 501, 502 (4) (13 S. E. 2d, 19). Nothing to the contrary was held in either of the following eases cited by the defendant in error: Dillard v. Dillard, 182 Ga. 779 (187 S. E. 16); Long v. Long, 191 Ga. 606 (13

No. 15468.

May 8, 1946.

S. E. 2d, 349).

Judgment reversed.

All the Justices concur.

Fwrl W. Butler, for plaintiff in error.

F. L. Clements, contra.