Shahan v. Shahan

49 S.E.2d 822, 204 Ga. 342, 1948 Ga. LEXIS 429

Opinion

Head, Justice.

Counsel for the plaintiff in error strongly insists in this court that the evidence shows without dispute that the plaintiff in error (husband) is unable to pay the amount awarded as temporary alimony and attorneys’ fees, and that the judgment holding him in contempt should be reversed. See Pinckard v. Pinckard, 23 Ga. 286; Davis v. Davis, 138 Ga. 8 (74 S. E. 830); Potter v. Potter, 145 Ga. 60 (88 S. E. 546); Lightfoot v. Lightfoot, 149 Ga. 213 (99 S. E. 611); Heflinger v. Heflinger, 172 Ga. 889 (159 S. E. 242, 76 A. L. R. 386). It is the duty of the trial court to determine from the evidence whether or not the husband has in good faith endeavored to comply with the court’s order fixing the amount of temporary alimony. In this case it is not shown that the husband’s resources were exhausted in an effort to comply with the judgment for temporary alimony. The undisputed evidence shows that certain sums of money (approximately $52) were earned by the husband over and above amounts paid as alimony and the amounts claimed by the husband to have been expended as living and business expenses. It is not shown by any testimony that the husband could not have made the payments of temporary alimony from assets other than his salary. This case is controlled by the rule stated in Reese v. Reese, 189 Ga. 314 (5 S. E. 2d, 777). See also Snider v. Snider, 190 Ga. 381 (9 S. E. 2d, 654); Arnold v. Arnold, 195 Ga. 304 (24 S. E. 2d, 12).

Judgment affirmed.

All the Justices concur, except Bell, J., absent on account of illness.