Cale v. Cale, 58586

• Decision Date: 11 January 1980
• Docket Number: No. 58586,58586
• Citation: 153 Ga.App. 57,265 S.E.2d 71
• Parties: CALE v. CALE.
• Court: Georgia Court of Appeals

Page 71

265 S.E.2d 71

153 Ga.App. 57

CALE v. CALE.

No. 58586.

Court of Appeals of Georgia.

Submitted Oct. 17, 1979.

Decided Jan. 11, 1980.

L. Scott McLarty, Decatur, for appellant.

John P. Manton, Cumming, for appellee.

QUILLIAN, Presiding Judge.

This appeal was taken from a judgment for the plaintiff in a garnishment proceeding based on a judgment for alimony and child support. On April 6, 1978, the defendant was ordered to pay $1,500 per month to the plaintiff as alimony and child support. A temporary alimony award was in effect in the amount of $1,000. The defendant appealed and the remittitur from the Supreme Court affirming the judgment was entered on November 22, 1978. The plaintiffs sought garnishment for the difference between the amount awarded by final judgment and the amounts paid by the defendant under the temporary order for the period of April through December 1978.

After a hearing on defendant's traverse of the garnishment, the trial judge found for the plaintiff in the sum of $5,736.14. On appeal, the defendant contends: "1. The trial court erred in finding that Appellant was obligated under the final judgment and decree from April 6, 1978 where a temporary order was neither vacated nor modified, and the judgment was not final until November 22, 1978. 2. The trial court erred in finding that Appellant owed $5,736.14 in that there was no evidence to support this finding." Held :

1. We admit some difficulty in reconciling the decisions of the Supreme Court involving matters related to the question at issue. See Brown v. Brown, 224 Ga. 90, 160 S.E.2d 343; Hicks v. Hicks, 227 Ga. 58, 178 S.E.2d 899; Bickford v. Bickford, 228 Ga. 353, 185 S.E.2d 756; McDonald v. McDonald, 234 Ga. 37, 214 S.E.2d 493. However, it is not our province to ascertain whether equitable treatment results in other cases not involving the factual situation with which we are presented. Our constitutional duty is to obey and follow the rulings of the highest court of this state.

Nicol v. Nicol, 240 Ga. 673, 242 S.E.2d 129 is controlling here. In that case, the final decree provided for larger alimony and child support payments than the temporary decree. The court held: "The effect of the supersedeas of the final judgment was to suspend all proceedings for the enforcement of the judgment, and when the judgment was affirmed it had full force and effect as of the date it was entered. Tanner v. Wilson, 184 Ga. 628, 633-634, 192 S.E. 425 (1937) and cits. The greater sums for permanent alimony and child support which came due during the...