Chlupacek v. Chlupacek

175 S.E.2d 834, 226 Ga. 520, 1970 Ga. LEXIS 581

• Court: Supreme Court of Georgia
• Decided: June 25, 1970
• Docket: 25733
• Status: Published

Opinions

Hawes, Justice.

Mrs. Chlupacek filed suit against her husband for divorce and alimony and seeking the custody of the minor children of the parties. In her complaint she also prayed that pending the disposition of the case the defendant be required to give temporary support, care and maintenance to the children of the parties and to the plaintiff, and that he be required to pay reasonable attorney's fees to plaintiff's counsel for bringing and prosecuting the action. The issue respecting the allowance of temporary alimony thus prayed for came on for a bearing before the trial court on November 6, 1969, and on November 18, 1969, the court passed an order reciting the fact of the hearing on November 6th, and reserving its decision, ruling and judgment on the plaintiff’s application for temporary alimony for herself and minor children and for attorney’s fees as a necessary expense of litigation until after the trial, verdict and judgment or decree in the main divorce case. Thereafter, on November 21st, the jury impaneled to try the main case, returned a verdict denying a divorce to the plaintiff and refusing to award her any alimony. On November 24,1969, judgment was entered on that verdict, and on the following day plaintiff filed a motion for new trial on the general grounds, which motion was set down for a hearing on the 17th day of February, 1970, by the order of the trial judge entered thereon. While that motion was still pending, and on the 6th day of January, 1970, the trial court passed an order awarding temporary alimony and attorney’s fees to the plaintiff. In his appeal to this court from that judgment, the defendant contends that the issuance of such order subsequent to the judgment adjudicating the issues in the divorce and alimony case in his favor was without lawful authority and that the trial court abused its discretion in entering such order.

1. Temporary alimony is an allowance made out of the estate or property of the husband to provide the necessities of life and the expenses of litigation to the wife pending the outcome of a proceeding for divorce and alimony, or for permanent alimony alone. Code § 30-202; Brown v. Brown, 224 Ga. 90, 91 (160 SE2d 343). Upon the hearing of the application for temporary alimony, the merits of the cause are not in issue. Code § 30-205; Aud v. Aud, 199 Ga. 714 (1) (35 SE2d 198). So a verdict and judgment denying a divorce and permanent alimony to the wife do not constitute res judicata or an estoppel preventing her from recovering temporary alimony for her support and for the payment of her attorney’s fees incurred in prosecuting or defending the divorce and alimony proceeding. Mitchell v. Mitchell, 97 Ga. 795, 796 (25 SE 385).

2. It is well established that the trial court may, pending an action for divorce and permanent alimony or for permanent alimony alone, hear evidence as to the issue of the allowance of temporary alimony and the expenses of litigation to the wife, and reserve its decision as to that issue until later, and that where such an order reserving a decision on that issue is entered prior to the grant of a total divorce, may, after the grant of the divorce, pass an order awarding such temporary alimony and allowance for expenses of litigation as may be authorized by the evidence adduced on such hearing. Crute v. Crute, 208 Ga. 724 (69 SE2d 255); Zuber v. Zuber, 215 Ga. 314 (1) (110 SE2d 370); Proctor v. Proctor, 224 Ga. 450 (1) (162 SE2d 398). The limitation on the right of the court to make an award of temporary alimony to a time prior to a verdict granting a total divorce is founded upon the theory that the jurisdiction of the court to award alimony is dependent upon the existence of the marital relationship of husband and wife between the parties, and that after that relationship has been severed, no further order respecting temporary alimony can be rendered. However, in this case, the verdict and judgment did not sever the marital relationship but left it in existence.

Submitted April 13, 1970 Decided June 25, 1970. Robert E. Andrews, for appellant. R. Wilson Smith, Jr., John H. Smith, Robert W. Lawson, Jr., for appellee.

3. Furthermore, a judgment for temporary alimony continues in force and effect until a final judgment in the case, until the termination of the litigation in all courts, and as long as the case is pending, including litigation in the Supreme Court. Holleman v. Holleman, 69 Ga. 676; Osborne v. Osborne, 146 Ga. 344, 345 (91 SE 61); Aud v. Aud, 199 Ga. 714 (3), supra. The judgment cannot be treated as final so long as either party has the right to have it reviewed by the Supreme Court. Twilley v. Twilley, 195 Ga. 297, 298 (24 SE2d 46).

4. Under the foregoing authorities, the trial court had the discretionary authority to pass the order granting temporary alimony and expenses of litigation to the plaintiff wife after the entry of the judgment in the main case denying her a divorce and permanent alimony. The judgment appealed from was not erroneous for any reason urged by the appellant.

Judgment affirmed.

All the Justices concur, except Felton, J., who dissents.