Gordon v. Gordon, 34935
| Decision Date | 02 July 1979 |
| Docket Number | No. 34935,34935 |
| Parties | GORDON v. GORDON. |
| Court | Georgia Supreme Court |
Harland, Cashin, Chambers & Davis, Harry L. Cashin, Jr., John C. Porter, Jr., Atlanta, for appellant.
Strother, Hicks & Wallace, Glenn H. Strother, Norcross, Clifton S. Fuller, Jr., Atlanta, for appellee.
This is an appeal from an order granting temporary alimony, medical and dental expense reimbursement, and attorney fees on account following a rule nisi hearing.
Wanda Faye Fuller Gordon filed suit for divorce in Fulton County alleging that she was and had been a resident of Fulton County for six months and that her husband was a non-resident of this state but that he could be served while sojourning here. At a hearing on the rule nisi set to hear the temporary alimony matter, the husband contested the jurisdiction of the Fulton County Superior Court over his person by motion and special appearance, contending that he is a resident of Hart County, Georgia. By oral motion he contested jurisdiction over the wife, contending that she was until recently a resident of Boulder, Colorado, and had not been a resident of this state for the required six months. The court reserved ruling on the jurisdictional issues for the trier of fact and awarded Wanda Gordon temporary alimony in the amount of $250 per month, medical and dental expenses not to exceed $100 per month, and $300 attorney fees on account. The husband appeals.
The first issue in this case is whether the court is required by law to decide any personal jurisdictional issues raised before it can order payment of temporary alimony. The purpose of a temporary alimony award is to afford the spouse seeking the award the means to contest all the issues between the parties, including jurisdictional issues, and consequently it is not error to award temporary alimony prior to ruling on jurisdictional issues. Carnes v. Carnes, 138 Ga. 1(1), 74 S.E. 785 (1912); Parker v. Parker, 148 Ga. 196(3, 4), 96 S.E. 211 (1918); Legg v. Legg, 150 Ga. 133, 134, 102 S.E. 829 (1920); LaFitte v. LaFitte, 171 Ga. 404, 155 S.E. 521 (1930); Hewlett v. Hewlett, 220 Ga. 656(1), 140 S.E. 898 (1965). The Civil Practice Act specifically authorizes the court to order hearing and determination of jurisdictional matters deferred until trial. Code Ann. § 81A-112(d).
Nothing contained in Code § 30-101 requires a contrary result. The fact that the husband here had not filed an answer relates to his right to trial by jury, not to the authority of the court to award temporary alimony before trial. The husband's failure to answer does not give him the right to insist that the jurisdictional issues be decided prior to the entry of a temporary award. In Hatcher v. Hatcher, 229 Ga. 249, 190 S.E.2d 533 (1972), the trial judge was authorized to, and did, decide the jurisdictional issue prior to trial. That case did not hold that the judge was required to decide the jurisdictional issue before awarding temporary alimony.
The husband next contends that the trial judge committed error in both in granting temporary alimony without any evidence as to his ability to pay, and refusing to allow him to present evidence concerning his ability to pay alimony. A spouse's "ability to pay" may be found from his or her assets or earning capacity. Although a person's income is some evidence of that person's earning capacity, it is not the only such evidence. A college student has capacity to earn even though his or her income is less than that of a person...
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