Alford v. Alford
| Decision Date | 09 July 1940 |
| Docket Number | 13392. |
| Citation | 9 S.E.2d 895,190 Ga. 562 |
| Parties | ALFORD v. ALFORD. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where on application, during pendency of suit for divorce and alimony, an award of $25 attorney's fees is allowed, and the only evidence produced is an affidavit of the wife that she needs attorney's fees, this court can not say that the allowance is inadequate or contrary to the evidence. While on such an application the judge after hearing evidence is empowered, if the evidence authorizes it, to revise or revoke his previous judgment for temporary alimony, yet where the only evidence offered on such hearing shows need of the wife for support and ability of the husband to pay, a judgment revoking a previous judgment for such alimony is unwarranted and is an abuse of discretion. On such hearing the judge is not authorized to consider information he obtained before the trial, unless produced as evidence upon that hearing.
Thelma Alford brought suit for divorce against his wife, Cecil Alford. The wife filed a cross-action for divorce and alimony. On September 6, 1938, judgment awarding $20 a month temporary alimony was rendered. Thereafter two successive verdicts were rendered, granting a divorce to both parties the last verdict disallowing any permanent alimony. On review (189 Ga. 630, 7 S.E.2d 278), this court reversed the judgment on special grounds, and the remittitur from this court was made the judgment of the trial court. Thereupon the wife filed an application with the judge, asking for attorney's fees and an order to the clerk to issue a fi. fa. for unpaid temporary alimony, and for an order continuing in effect the judgment of September 6, 1938, awarding temporary alimony to her. On this application a rule nisi was issued and served upon Thelma Alford, who filed no answer and offered no evidence on the hearing. The applicant offered an affidavit alleging her need for alimony and attorney's fees and her husband's financial ability to pay. At the conclusion of the hearing the following order was issued: 'The above matter coming on to be heard, it is ordered that petitioner be allowed $25 as attorney's fees to be paid in cash, and that all temporary alimony accruing after October 17th, 1939, is denied.' To this judgment Cecil Alford excepted.
R. O. Jones and Wm. Y. Atkinson, both of Newman, for plaintiff in error.
Walter D. Sanders, of Newman, for defendant in error.
The judgment excepted to is assailed on three grounds: (a) That the award of attorney's fees is wholly inadequate and is an abuse of discretion; (b) that the court was without power to revoke its order allowing temporary alimony, because the husband made no application for such an order; and (c) that the judgment denying temporary alimony is contrary to the evidence and is a gross abuse of discretion. The parties are agreed that a court has power to alter or revoke at any time its judgments awarding temporary alimony. The law on this question is conclusive. Code, § 30-204; Wester v Martin, 115 Ga. 776, 42 S.E. 81; Jennison v. Jennison, 136 Ga. 202, 71 S.E. 244, Ann.Cas.1912C, 441; Woodall v. Woodall, 136 Ga. 700, 71 S.E. 1099; Hemphill v. Hemphill, 172 Ga. 387, 157 S.E. 637; Thomas v. Smith, 185 Ga. 243, 194 S.E. 502. If an application to the judge for revision or revocation is necessary, then the application of the wife in the present case for an order continuing in effect such a judgment constitutes sufficient...
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