MELVIN v. MELVIN

Supreme Court of Georgia1907-08-09

129 Ga. 42

Summary · law.co

Holding. The court affirmed the awards of temporary alimony and attorney's fees but reversed the grant of the temporary injunction against the husband's property, holding that an injunction to restrain disposition of property requires proof of special circumstances showing the husband is actually attempting or contemplating asset transfers to defeat the wife's alimony claim, not merely the possibility that alimony may be owed.

A wife sought a divorce from her husband on grounds of cruel treatment, requesting alimony, attorney's fees, and a court order preventing him from selling or encumbering his property. The trial court awarded her temporary alimony of seventy-five dollars plus fifteen dollars monthly, fifty dollars in counsel fees, and issued an injunction against the husband's disposition of his assets. The husband challenged all three rulings on appeal.

The court upheld the alimony and attorney's fee awards. The husband had an annual net income of approximately one thousand dollars and a net worth of about ten thousand dollars, while the wife possessed a separate estate generating roughly four hundred dollars annually. The wife also had a minor daughter from a previous marriage dependent on her for support. Under the applicable statute, the court properly considered these factors—the wife's separate estate, her financial needs arising from the litigation, and her dependent child—in setting the temporary alimony amount, which was reasonable and supported by evidence.

However, the court erred in granting the injunction against the husband's property. The wife's petition contained no allegations that the husband was actually disposing of, encumbering, or even threatening to dispose of his property, nor did she present evidence that he contemplated transferring assets to avoid paying alimony. While a wife may seek such an injunction in appropriate circumstances where special facts demonstrate it is necessary to protect her alimony rights, an injunction cannot issue merely because alimony may be owed.

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

Key issues

Factors courts may consider in awarding temporary alimony during divorce proceedings
Whether a wife's separate estate and dependent children affect alimony calculations
Standard for granting temporary injunctions against property disposition in divorce cases

Procedural posture

The wife appealed from an interlocutory hearing order granting temporary alimony, attorney's fees, and a temporary injunction against the husband's property.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Evans, J.

The wife filed a petition against the husband, praying a divorce, an allowance of alimony and attorney’s fees, and an injunction against the husband encumbering or selling his property pending the suit. On the interlocutory hearing the court awarded the wife counsel fees and temporary alimony, and enjoined the defendant from encumbering or selling his property until final decree. The defendant excepts on the grounds, that the wife is not entitled to alimony under the case made; that the allowance was excessive; and that no cause for an injunction pendente lite was shown.

- The ground for divorce was cruel treatment; the truth of the allegations was denied by the defendant. It appeared that both husband and wife had been previously married. By the husband’s former marriage he had two minor sons, and by the wife’s former marriage she had a minor daughter. The wife also had a separate estate ■ which, previously to the marriage, had yielded an annual income of about four hundred dollars. The court allowed as alimony a present sum of seventy-five dollars, and a monthly allowance of fifteen dollars until final decree, and counsel fees to the extent of fifty dollars. There was -proof that the husband was a good business man, worth about ten thousand dollars, and received from the management of his property an annual net income of about one thousand dollars. The Civil Code, §2458, declares : “In arriving at the proper provision, the judge shall consider the peculiar necessities of the wife, growing out of the pending litigation; he may also consider any evidence of a separate estate owned by the wife; and if such estate is ample, as compared with the husband’s, temporary alimony may be refused.” The court may also consider the fact that the wife has a minor daughter by a former marriage, dependent upon her for a support. The husband is under no legal duty to support his step-daughter; and the court, in estimating the wife’s income from her separate estate, should take this circumstance into consideration. The allowance was authorized by the evidence, and was not excessive.

The petition did not allege that the husband was disposing of his property, or encumbering it, or even threatening to do so. Nor did the petition allege any special reason why the husband should be enjoined from disposing of or encumbering his property. No proof was submitted that the husband was attempting or even contemplating the transfer of his property to defeat the wife’s claim for alimony. A wife may in a proper case apply for an injunction to prevent the husband from alienating or encumbering his property to defeat her claim for alimony, but she can not resort to this extraordinary remedy solely because she may be entitled to have her husband pay her alimony. Before the writ of injunction can properly issue, it must appear from the special circumstances of the case that the issuance of the writ is essential to the protection of her right to alimony. The pourt therefore erred in granting a temporary injunction.

Judgment -affirmed in part, and reversed in part.

All the Justices concur.