Potter v. Potter

88 S.E. 546, 145 Ga. 60, 1916 Ga. LEXIS 179

• Court: Supreme Court of Georgia
• Decided: April 12, 1916
• Status: Published

Opinion

Lumpkin, J.

(After stating the foregoing facts.)

This court can not hold that the original order awarding temporary alimony was improvidently granted when it was passed. As to the judgment declaring the defendant to be guilty of contempt and ordering him to be imprisoned if he should fail to pay the amount of alimony past due, amounting to $80, within ten days, and refusing to make any modification of the former order, we feel constrained to hold that the court erred. The evidence on behalf of the defendant showed that he could not then comply with the order for the payment of alimony, and a change in his ability to do so, owing to a decrease in earnings, and the fact that those who hád previously made him small loans of money were unwilling or unable to do so. The plaintiff introduced no evidence, but left the case to stand upon that introduced by the defendant. While in eases of conflicting evidence the discretion of the trial court will not be readily interfered with, yet, under the evidence introduced by the defendant as to his pecuniary condition and inability at the time of the hearing to comply with the former order, with no counter-showing or rebutting evidence, the court erred in requiring the payment, within ten days, of past-due installments of alimony, amounting to $80, or that in default thereof the defendant should be imprisoned, and in declining to make any modification in the requirement as to the payment of alimony or its amount. Should it appear later that the defendant’s ability to pay temporary alimony has increased, the matter will still be within the discretionary control of the court. Pinckard v. Pinckard, 23 Ga. 286; Wester v. Martin, 115 Ga. 776 (42 S. E. 81); Jennison v. Jennison, 136 Ga. 202 (71 S. E. 244, 24 Ann. Cas. (1912C) 441).

Juágment reverseá.

All the Justices concur.