Lucas v. Lucas

191 S.E.2d 29, 229 Ga. 283, 1972 Ga. LEXIS 583
CourtSupreme Court of Georgia
DecidedJune 16, 1972
Docket27190
StatusPublished

This text of 191 S.E.2d 29 (Lucas v. Lucas) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lucas v. Lucas, 191 S.E.2d 29, 229 Ga. 283, 1972 Ga. LEXIS 583 (Ga. 1972).

Opinion

Grice, Presiding Justice.

This appeal involves rulings with reference to divorce and alimony.

On August 16, 1971, the appellant William J. Lucas filed a complaint against the appellee Imogene Copane Lucas in the Superior Court of Muscogee County, praying for a divorce, a restraining order, a rule nisi and other relief not necessary to recite here.

The trial court granted the restraining order and ordered the appellee to show cause on August 31, 1971, why the prayers should not be granted.

The appellee filed defenses, including a cross complaint, admitting in part and denying in part the allegations of the complaint. She also alleged that the appellant had committed certain acts of misconduct; that she was sick and unable to obtain employment; and that she owned items of household furniture, furnishings, supplies and other equipment prior to their marriage.

She prayed that the appellant’s prayers be denied; that she be granted temporary and permanent alimony, attorney’s fees, a temporary and permanent injunction, an automobile, a sufficient amount of household furniture to enable her to establish separate residence, $300 a month for support, fifty percent of the proceeds from the sale of a house, if sold; and for rule nisi.

The trial court directed the appellant to show cause on August 31, 1971, why the appellee’s prayers should not be granted.

On that date, the trial court entered an order wherein it was stated in material part: "[I]t appearing to the court, that parties hereto have reached an agreement, it is hereby ordered and adjudged as follows: The [appellee] herein shall have the use of the [automobile]. Both parties are re[285]*285strained and enjoined from interfering with or molesting each other . . .”

On December 22, 1971, the appellee filed an amendment to her answer and cross complaint, alleging in substance that she was now in need of temporary alimony and support, asked that the trial court issue a new rule nisi setting the cause down for a hearing, and prayed for temporary alimony and attorney’s fees.

Thereupon, the court directed the appellant to show cause on January 6, 1972, why the appellee’s prayers should not be granted.

Subsequently the appellant filed a response to the foregoing amendment, denying its essential allegations, praying that it be denied and stricken from the pleadings and asking for a jury trial.

On that date, January 6, 1972, after a hearing in which evidence was heard, the court ordered the appellant to pay the appellee $125 immediately and "on the [sixth] day of every month thereafter until further order” as temporary alimony, and reserved the right to make an award of attorney’s fees.

On February 25, 1972, the appellant was ordered to show cause why he should not be held in contempt for failure to pay temporary alimony under the order of January 6, 1972; and on February 29,1972, he was found to be in wilful contempt and ordered confined to jail until such time as the "arrears and attorney’s fees shall have been paid in full.”

On March 1, 1972, the case came on for a trial before a jury. It returned the following verdict: "We the jury award the [appellant] a divorce, both parties are restrained as prayed, the [appellee] is awarded the furniture owned by her prior to the marriage together with any gifts given to the parties during the marriage and vacuum cleaner and the [automobile] and two of the cemetery lots owned by the two parties. The house owned by the [appellant] shall remain his so long as he lives and shall go to the [appellee] at his death; however if the house is sold during his lifetime, the net equity shall be divided equally. Alimony is [286]*286awarded to the [appellee] in the amount of $250 per month.”

On March 8, 1972, the trial court entered a final judgment and decree which incorporated the verdict of the jury. It also recited that the appellee had moved for additional attorney’s fees prior to the verdict; that "the court did, in fact, before the verdict of the jury, issue its order” awarding the appellee’s attorneys the sum of $400 as part of the temporary alimony in this action; and that appellant was ordered to turn over to the appellee a list of 36 items constituting her personal property.

On March 10, 1972, the appellant filed his notice of appeal from the above order and decree.

However, no transcript of evidence appears in the record of appeal and upon oral argument counsel for both sides stated none exists.

The first enumeration of error avers that the court erred by allowing an amendment of the appellee which was resisted by the appellant. This amendment brought about the hearing which resulted in the order of January 6, 1972. No order was in fact entered as to this amendment. Hence there is no ruling to enumerate as error.

The second enumeration contends that the court erred by changing an agreement entered into by the parties, which was alleged to be complete as to temporary alimony and attorney’s fees, approved by the court and made the order of the court.

The order referred to bears the date of August 31, 19.71. The trial court ruled therein that the parties having reached an agreement, the appellee was to have the use of an automobile and both parties were restrained from interfering with or molesting each other.

This order did not mention alimony or attorney’s fees. Therefore, it did not preclude the order of January 6, 1972, which awarded temporary alimony and attorney’s fees.

The fourth enumeration is that the trial court erred in failing to sustain the appellant’s motion to vacate the order of January 6, 1972. However, the record does not show [287]*287that any ruling was made as to this motion. Hence there is nothing for this court to review.

There is no merit in the appellant’s enumeration that the trial court erred in awarding additional attorney’s fees in the final order of March 8, 1972.

The previous order of January 6, 1972, specifically retained jurisdiction for this purpose and the aforesaid decree recites that a hearing was held before the judgment was rendered. Therefore the award of additional attorney’s fees was not error. Byers v. Byers, 225 Ga. 263 (3) (167 SE2d 640). See also Brown v. Brown, 224 Ga. 90 (160 SE2d 343).

The appellant contends that the portion of the verdict which awarded the house to the appellant for his lifetime and to the appellee at his death, but divided the equity if sold during his lifetime, is error because the right to receive alimony from the husband ceases upon his death. The cases of Berry v. Berry, 208 Ga. 285 (1) (66 SE2d 336) and Veal v. Veal, 226 Ga. 285 (174 SE2d 435) are cited as authority for this position.

The appellant’s position is not valid.

In the Berry case instalment payments were involved. Here the award was of a specified interest in realty, not periodic payments, and the appellee’s interest was vested in her by the judgment following this award made by the jury. See Wise v. Wise, 156 Ga. 459 (2) (119 SE 410).

The Veal case is also readily distinguishable. It is concerned with the proceeds from insurance policies to be used for the maintenance, support and education of children as a part of their child support.

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Related

O'Gorman v. O'Gorman
181 S.E.2d 490 (Supreme Court of Georgia, 1971)
Veal v. Veal
174 S.E.2d 435 (Supreme Court of Georgia, 1970)
Berry v. Berry
66 S.E.2d 336 (Supreme Court of Georgia, 1951)
Byers v. Byers
167 S.E.2d 640 (Supreme Court of Georgia, 1969)
Brown v. Brown
160 S.E.2d 343 (Supreme Court of Georgia, 1968)
Wise v. Wise
119 S.E. 410 (Supreme Court of Georgia, 1923)

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Bluebook (online)
191 S.E.2d 29, 229 Ga. 283, 1972 Ga. LEXIS 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucas-v-lucas-ga-1972.