Blanchet v. Blanchet, 39937

• Decision Date: 07 September 1983
• Docket Number: No. 39937,39937
• Citation: 306 S.E.2d 907,251 Ga. 379
• Parties: BLANCHET v. BLANCHET.
• Court: Georgia Supreme Court

Page 907

306 S.E.2d 907

251 Ga. 379

BLANCHET v. BLANCHET.

No. 39937.

Supreme Court of Georgia.

Sept. 7, 1983.

Steven Montalto, Michael Weinstock, Atlanta, for appellant.

Alan B. Waln, Hamilton, Waln & Carmichael, Atlanta, for appellee.

SMITH, Justice.

In this no-fault divorce case, the former wife appeals from an order denying her request for attorney fees. The trial court ruled that appellant's application was not timely filed and entered an order denying attorney fees. We reverse.

In August 1981, Linda Joyce Blanchet filed her complaint for divorce, alleging that the marriage of eight years was irretrievably broken and seeking temporary and permanent alimony, equitable property division, child support and custody of the couple's minor child. Paragraph 10 of her complaint stated: "Your plaintiff, in addition to temporary and permanent support, is in need of an award against the Defendant for reasonable attorney's fees to ensure just and proper representation of the Plaintiff as the Plaintiff is financially unable to hire her own attorney." The judge orally granted a divorce on the pleadings on the ground that the marriage was irretrievably broken. The case proceeded to trial before a jury on the remaining contested issues of alimony, child support and property division. ¹ On January 6, 1983, the jury returned a verdict awarding appellant monthly alimony and child support payments, as well as possession of the marital abode and title to an automobile. The verdict left unresolved the issues of child custody and visitation rights. Counsel for the parties agreed to settle these issues and incorporate a stipulation into a proposed final judgment for approval by the court.

On January 17, 1983, appellant filed her "Motion for an Award of Attorney's Fees" and briefs in support thereof with the court. On February 2, the judge entered an order denying the motion. On February 10, the trial judge entered judgment on the jury verdict, incorporating the child custody and visitation terms agreed to by the parties. Finally, on March 7, 1983, the judge entered a final judgment of divorce, nunc pro tunc as of January 24.

The sole issue on appeal is the correctness of the order denying appellant's application for attorney fees. The trial court cited our decision in Southerland v. Southerland, 247 Ga. 585, 277 S.E.2d 684 (1981), in support of its conclusion that appellant's application was not timely filed. Prior to Southerland, the settled rule in Georgia was that "neither an application for attorney fees nor a hearing thereon may be filed or heard after a divorce verdict, [although] the judge may reserve judgment on such an application until after verdict when such application is filed prior to verdict." Hagstrom v. Hagstrom, 235 Ga. 853, 855, 221 S.E.2d 602 (1976). The reason for this rule was that once a verdict or decree dissolving the marital relation has been returned or entered, the trial court is without authority to award attorney fees, which are considered part of temporary alimony. See McConaughey, Georgia Divorce, Alimony and Child Custody 94 (2d ed. 1980). In Southerland v. Southerland, supra, this court modified the traditional rule to bring it more in line with the realities of modern bifurcated divorce proceedings. "[W]ith the advent of the bifurcated trial of a divorce case ... the divorce decree is...