McNeil v. McNeil

Hines, J.

(After stating the foregoing facts.) The wife, no divorce proceedings being pending, applied for temporary and permanent alimony and attorney’s fees on the ground 'that her husband had deserted her and they were living in a bona fide state of separation. The husband answered her petition, and alleged, among other things, that the wife had been guilty of adulter}', and that for this reason she was not entitled to alimony. After hearing the evidence the judge granted the wife temporary alimony and attorney’s fees, to which judgment the husband excepted upon the sole ground that it was contrary to law and contrary to the evidence, it having been conclusively established that the plaintiff committed adultery on September 17, 1921, which had not been condoned by the husband, and that for this reason the judge should have refused to grant to her any temporary alimony or attorney’s fees.

Two witnesses testified in behalf of the husband that they saw the wife at the hour of midnight enter at the rear the home of one Davis, an unmarried man, who resided alone on the adjoining lot to that on which the husband and wife lived, that as the wife approached the rear door Davis laughed and invited her in, when, after she had entered, he shut the door, and the lights were put out. Here the curtain dropped. What occurred is a matter of inference and conjecture. If a married woman at the dead hour of midnight was seen to enter at the rear the chambers of an unmarried man, who lived alone, and who greeted her, as she approached with laughter and • an invitation to come in, and who after she had entered closed the door and put out the lights, this is proof sufficient, if the witnesses so testifying were credible, to justify an impartial mind, searching for the truth, to reach the conclusion that the wife had been guilty of infidelity. But the wife proved her good- character by several witnesses, and testified that she did not even know a man by the name of Davis, and had not had any improper relations with him. This testimony of the wife produced a conflict in the evidence. The witnesses who testified in behalf of the husband to the improper conduct of the wife could not state the given name of the man Davis with whom she was alleged to have had improper relations, although one of the witnesses testified that she had known him for two years, and that the backs of their houses were opposite each other only a short distance apart.

The evidence of the guilt of the wife being conflicting, and the judge having resolved the matter in favor of the wife, we can not say that he abused his discretion in allowing the wife temporary alimony and attorney’s fees. Certainly, we can not say that his judgment is against the uncontradicted evidence in the ease. Hutchins v. Hutchins, 148 Ga. 109 (95 S. E. 974); Parks v. Parks, 126 Ga. 437 (55 S. E. 176); Spooner v. Spooner, 149 Ga. 467, 469 (100 S. E. 571); Ray v. Ray, 120 Ga. 25 (47 S. E. 570).

Under this state of the record we are not called on to decide whether adultery of the wife will, under all circumstances, bar her from alimony and attorney’s fees, when she applies therefor upon the ground that she and her husband are living in a bona fide state of separation. The curious upon this subject are referred to Kendrick v. Kendrick, 105 Ga. 38 (31 S. E. 115) (prenuptial prostitution); Williams v. Williams, 114 Ga. 772 (40 S. E. 782) (divorce proceedings by wife on the ground of cruelty denied by husband, and defense of adultery undenied by wife; abuse of discretion to allow alimony); Koch v. Koch, 42 Barb. (N. Y.) 515 (repeated adulteries); Jennison v. Jennison, 136 Ga. 202 (71 S. E. 244, Ann. Cas. 1912C, 441) (adultery of wife subsequent to grant of temporary alimony, prior to grant of divorce, unknown to the husband until after the grant of the same, cause to modify or review the order); Davis v. Davis, 134 Ga. 804 (68 S. E. 594, 30 L. R. A. (N. S.) 73, 20 Ann. Cas. 20) (adultery of the husband, condoned by the wife); Lander v. Lander, L. R. P. D. 1891, p. 161 (alimony in spite of adultery without provision dum sola et casta); Edwards v. Edwards, L. R. P. D. 1894, p. 33, Squire v. Squire, L. R. P. D. 1905, p. 4 (alimony, although wife guilty of adultery, granted dum sola et casta); Wilkins v. Wilkins, 146 Ga. 382 (91 S. E. 415) (final decree for permanent alimony can not be reviewed for previous adultery of the wife); Long v. Long, 147 Ga. 771 (95 S. E. 676) (sole cause of separation, infidelity of the wife uncondoned by the husband, the wife under such circumstances not ' legally entitled to have temporary alimony).

Judgment affirmed.

All the Justices concur.