Embry v. Embry, s. 26796
| Decision Date | 18 November 1971 |
| Docket Number | 26797,Nos. 26796,s. 26796 |
| Citation | 228 Ga. 468,186 S.E.2d 104 |
| Parties | Jane Goodman EMBRY v. Alton Jackson EMBRY. Alton Jackson EMBRY v. Jane Goodman EMBRY. |
| Court | Georgia Supreme Court |
Syllabus by the Court
Where an award of temporary alimony is granted to a wife in a divorce action, and the parties conditionally reconcile and cohabit, again separate, and thereafter file amendments to their divorce action and proceed to a trial of the case, the temporary alimony award to the wife remains in effect and is not voided by the voluntary cohabitation.
J. Robin Harris, Decatur, Claude E. Hambrick, Atlanta, for Jane Goodman Embry.
Westmoreland, Hall & Bryan, John L. Westmoreland, Sr., P. Joseph McGee, Atlanta, for Alton Jackson Embry.
These appeals are from orders entered in a divorce action. The husband appeals from an order granting the wife temporary alimony during the pendency of a motion for new trial by her on the issue of permanent alimony. The wife appeals from the order holding a previous temporary alimony award void.
The action for divorce was originated by the husband, and the wife filed a cross complaint for divorce, and temporary and permanent alimony. The judge granted temporary alimony in the sum of $1,250 per month. Thereafter the parties had a conditional reconciliation and resumed cohabitation, but approximately a month later again separated. Both parties filed amendments to their complaints alleging these facts, and the case proceeded to trial. A divorce was granted to the wife, and the jury found a monthly sum of $1,500, and other items, as permanent alimony. The wife filed a motion for new trial on the issue of alimony only.
During the pendency of the motion for new trial, the wife filed a motion to hold the husband in contempt for failure to make the last payment due of temporary alimony. The trial judge refused to hold the husband in contempt, ruling that the award of temporary alimony was void and unenforceable because of the conditional reconciliation and voluntary cohabitation of the parties after the entry of the alimony award.
On the same date that the temporary alimony award was held to be void, the wife filed a motion for the grant of temporary alimony until the case is finally concluded. The trial judge awarded temporary alimony of $1,500 per month pending review of the matter in the appellate court.
1. It is the general rule that a decree for temporary alimony is rendered void by the subsequent voluntary cohabitation of the parties. Weeks v. Weeks, 160 Ga. 369(1), 127 S.E. 772; Mosely v. Mosely, 181 Ga. 543(1), 182 S.E. 849; Thomas v. Smith, 185 Ga. 243,...
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