Anthony v. Anthony, 31472
| Decision Date | 05 October 1976 |
| Docket Number | No. 31472,31472 |
| Citation | 237 Ga. 753,229 S.E.2d 609 |
| Parties | Glenn W. ANTHONY v. Willie Ruth ANTHONY. |
| Court | Georgia Supreme Court |
Araguel & Sanders, Patrick J. Araguel, Jr., Jerry D. Sanders, Columbus, for appellant.
Hirsch, Beil & Partin, Milton Hirsch, Columbus, for appellee.
This is the second appearance of this case before this court. In Anthony v. Anthony, 236 Ga. 508, 224 S.E.2d 349 (1976), the prior appeal 'from the Order (of the trial court) denying the Defendant's Plea to Jurisdiction' was dismissed for want of jurisdiction in this court to hear that appeal. Thereafter appellant filed a motion to set aside the final judgment of the trial court which awarded alimony to appellant's wife. The denial of the motion to set aside the final judgment is the subject of this appeal.
This case began in Muscogee Superior Court when the wife filed a petition for alimony against her husband, the appellant. She later amended her complaint to allege that appellant had absconded to Alabama. Appellant made a special appearance and contended that he had become an Alabama resident. The trial court ordered that appellant be served by publication and appointed a receiver to take charge of his real property in Muscogee County. The final judgment of the trial court granted the wife alimony by awarding her fee simple title to appellant's real property in Muscogee County.
Appellant contends that we must consider this action for alimony as an in personam proceeding. On this basis, he insists that an alimony judgment cannot be rendered against a nonresident defendant upon service by publication. See Hammers v. Hammers, 230 Ga. 711, 198 S.E.2d 656 (1973); Hicks v. Hicks, 193 Ga. 446, 18 S.E.2d 754 (1942). We recognize that a personal judgment for alimony cannot be rendered against a nonresident defendant upon service by publication. See Pennoyer v. Neff, 5 Otto 714, 95 U.S. 714, 24 L.Ed. 565 (1877); McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608 (1916); Hicks v. Hicks, supra. However, the present case was converted to an in rem proceeding and no personal judgment was rendered against appellant.
We think the trial court had jurisdiction to enter the present in rem judgment awarding the appellant's real property in Muscogee County as alimony to appellant's wife in this case. Lack of personal service does not necessarily imply a lack of jurisdiction, and in a proceeding in rem, service may be perfected by a seizure of the res. Forrester v. Forrester, 155 Ga. 722, 118 S.E. 373 (1923). Appellant does not contend that service was not obtained upon him in this case by publication or that he did not know of the seizure of his realty by the receiver before it was awarded by the trial court to his wife as alimony in the final judgment. We find no error in this enumeration.
Appellant also complains that the alimony judgment of the trial court awarded fee simple title to his property to his wife rather than limiting the award simply to the use of the property. In support of this argument, appellant leans upon the language in Hicks v. Hicks, supra, 193 Ga. at p. 447, 18 S.E.2d at p. 755, that 'the extent of available judicial relief in reference to alimony against a non-resident defendant, who is not personally served in this state . . . is confined to the seizure and utilization...
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Stokes v. Stokes
...other spouse as alimony (Code Ann. § 30-209), under the rules for determining alimony (Code Ann. §§ 30-201, 30-209). Anthony v. Anthony, 237 Ga. 753, 229 S.E.2d 609 (1976); Pickle v. Pickle, 238 Ga. 66(2), 231 S.E.2d 61 (1976). Alimony was not sought here by the husband. We do not deal here......
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Abernathy v. Abernathy
...cannot award either alimony or attorney's fees unless it also has personal jurisdiction over the defendant. Anthony v. Anthony, 237 Ga. 753, 754, 229 S.E.2d 609 (1976); Hammers v. Hammers, 230 Ga. 711, 198 S.E.2d 656 (1973); Hicks v. Hicks, 193 Ga. 446(1), 18 S.E.2d 754 (1942). The award of......
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In re Nix, Bankruptcy No. G90-21690-REB. Adv. No. 93-2038.
...type of property allocation. See O.C.G.A. § 19-6-5(a); see also Pickle v. Pickle, 238 Ga. 66, 231 S.E.2d 61 (1976); Anthony v. Anthony, 237 Ga. 753, 229 S.E.2d 609 (1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1117, 51 L.Ed.2d 546 (1977).2 For instance and as is frequently the case, an alim......
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Benefield v. Harris
...such property as the defendant may own in this jurisdiction." Hicks v. Hicks, 193 Ga. 446(1), 18 S.E.2d 754; Accord: Anthony v. Anthony, 237 Ga. 753, 754, 229 S.E.2d 609. Accordingly, we hold that alimony is an in personam issue (Slowik v. Knorr, 222 Ga. 669, 671, 151 S.E.2d 726, supra), an......