Herring v. Herring

207 S.E.2d 452, 232 Ga. 464, 1974 Ga. LEXIS 984

• Court: Supreme Court of Georgia
• Decided: June 21, 1974
• Docket: 28772, 28841
• Status: Published

Opinions

Nichols, Presiding Justice.

In September 1966 a divorce was granted dissolving the marriage of Dorothy Elizabeth Holland Herring and Billie Frank Herring. A lump sum settlement as to the wife’s alimony was agreed to by the parties and made a part of the decree. Child support in the amount of $75 per month was awarded in accordance with such agreement, until "said child shall become 21 years of age, married or otherwise emancipated.”

In June 1972 a petition was filed by the former, husband in which he sought an order declaring the child emancipated thereby relieving him from further liability under the divorce decree for child support payments. Other relief consistent with this prayer was also sought. A rule nisi was issued, and after hearing evidence, the trial court ruled that only so long as the child was in' custody of the police authorities of the state, its political ¡ subdivisions or the State Department of Human1 Resources that no child support payments would be due. Attorney fees were awarded the wife in such order as well as in a subsequent judgment. The former husband appealed from the judgments adverse to him. Held:

Argued April 10 and May 14, 1974 Decided June 21, 1974 Rehearing denied July 9, 1974. William F. Herring, pro se. Aynes, Burger, Genius & Kirby, Richard R. Kirby, for appellee.

1. The appellee’s motion to dismiss the appeal has been carefully considered and is denied. This case does not come within the holding in Taylor v. Columbia County Planning Comm., 232 Ga. 155 (205 SE2d 287).

2. The petition in this present case was not one seeking to modify an award of alimony so as to authorize the award of attorney fees to the wife under the provisions of the Act of 1955 (Ga. L. 1955, pp. 630, 632; Code Ann. § 30-223), but a petition seeking a declaration of the husband’s responsibility under the original decree, and it is only where a modification of the alimony award is sought by the husband that attorney fees and expenses of litigation are authorized. See Gallant v. Gallant, 223 Ga. 394 (156 SE2d 61).

The award of attorney fees and expenses of litigation to the former wife was error and such judgments must be reversed.

The question of whether such proceeding is properly permitted was not raised in this court in this case. Accordingly, the question of whether such procedure is proper where objected to is not passed upon.

3. The enumerations of error which contend that the trial court should have found the couple’s child emancipated, not only while in the custody of authorities but permanently, present nothing for review inasmuch as there is no transcript of the evidence presented to the trial court on such issue. Compare Herring v. Herring, 228 Ga. 492 (186 SE2d 538) and citations.

Judgment affirmed in part; reversed in part in No. 28772. Judgment reversed in No. 28841.

All the Justices concur, except Gunter, Ingram and Hall, JJ, who dissent.