Hagan v. Hagan
| Decision Date | 02 September 1952 |
| Docket Number | No. 17854,17854 |
| Citation | 72 S.E.2d 295,209 Ga. 313 |
| Parties | HAGAN v. HAGAN. |
| Court | Georgia Supreme Court |
In Hagan v. Hagan, 208 Ga. 315, 66 S.E.2d 714, this court held that the pending suit for divorce in Bibb County by the husband on the ground of desertion was terminated by the reconciliation and cohabitation of the husband and wife in the county of the husband's residence (Glynn). It was further held that the cross-action of the wife, filed after the reconciliation and cohabitation of the parties in Glynn County, which alleged that the husband was a resident of Glynn County, did not have the effect of giving jurisdiction to the Superior Court of Bibb County. In the present case the judgment holding the defendant in contempt of court, based upon an alleged failure to pay temporary alimony, was not issued until after the judgment by this court which affirmed the judgment of the trial court dismissing the wife's cross-action for lack of jurisdiction.
Thomas A. Jacobs, Frank G. Wilson, Macon, for plaintiff in error.
Bell & Bell, Macon, for defendant in error.
Syllabus Opinion by the Court.
1. The present action is not a case where the wife alleged jurisdiction of the court, and temporary alimony was awarded to enable the wife to contest the husband's plea to the jurisdiction, within the rule stated in Carnes v. Carnes, 138 Ga. 1, 74 S.E. 785; Legg v. Less, 150 Ga. 133, 102 S.E. 829; LaFitte v. LaFitte, 171 Ga. 404, 155 S.E. 521; and similar cases. In the present case the attachment for contempt did not issue until after a final judgment by this court affirming the judgment of the trial court in dismissing the wife's cross-action for want of jurisdiction.
2. A judgment of a court without jurisdiction of the parties is void and may be attacked at any time and in any court where such judgment is attempted to be enforced. Code §§ 110-701, 110-709; Parish v. Parish, 32 Ga. 653; Franklin County v. Crow, 128 Ga. 458, 57 S.E. 784; Schulze v. Schulze, 149 Ga. 532, 101 S.E. 183; Foster v. Foster, 207 Ga. 519, 523, 63 S.E.2d 318.
3. An award of temporary alimony by a court not having jurisdiction of the parties, or void for any other cause, cannot be made the basis of the valid proceeding for contempt. Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642; Strickland v. Strickland, 201 Ga. 293, 298, 39 S.E.2d 483; Swindell v. Swindell, 208 Ga. 727, 69 S.E.2d 197.
4. The trial court erred in adjudging the defendant in contempt.
Judgment reversed.
All the Justices concur, except WYATT, and ALMAND, JJ., who dissent, and ATKINSON, P. J., not participating.
One of the purposes of granting temporary alimony to a wife pending the husband's action for a divorce is to financially assist her in paying expenses of the litigation. Code, § 30-202. Temporary alimony, when once granted, unless terminated by the court granting the order, continues as long as the cause pends. 'The cause is pending just as long as it is litigated, whether in the superior court or in this court.' Holleman v. Holleman, 69 Ga. 676, 677; Powell v. Powell, 200 Ga. 379(1), 37 S.E.2d 191. An order for temporary alimony is not void, though the husband pleads that the court has no jurisdiction over him. LaFitte v. LaFitte, 171 Ga. 404, 155 S.E. 521.
In the instant case the husband filed a suit for divorce in Bibb Superior Court on September 20, 1948, on the ground of desertion. On October 20, 1950, the wife filed a cross petition, alleging a reconciliation after the filing of the husband's suit and a subsequent separation, and prayed for a divorce and alimony temporary and permanent. On February 13, 1951, the wife amended her cross petition, alleging that the husband was a resident of Glynn County. On March 9, 1951, the court awarded to the wife temporary alimony and attorney's fees. On the same date the husband filed a demurrer to the cross-petition, asserting that the cross-petition shows on its face that the venue was not in Bibb County, and also on the same day he filed a special plea in bar, alleging that after the filing of the divorce suit there was a reconciliation, after which the parties resided in Glynn County, and that he was a resident of that county. The wife filed a motion to dismiss the husband's demurrer and plea to the jurisdiction. This motion was denied. On April 25, 1951, the wife amended her cross-action, setting up that the reconciliation and cohabitation after the filing of the divorce suit was conditional, and that the husband failed to abide the conditions. On April 26, 1951, the court entered an order reciting that it was without jurisdiction, and dismissed the cross action, which order was affirmed by this court. Hagan v. Hagan, 208 Ga. 315, 66 S.E.2d 714. Thereafter the wife filed her rule for contempt. The husband defended on the ground that the temporary alimony ceased as of April 26, 1951, when the trial court held that it was without jurisdiction and dismissed the cross-action. The trial court held the husband in contempt for failure to pay the alimony between April 26, 1951, and the date of the final judgment in this court on the wife's appeal. The invalidity of the temporary alimony was not involved in the case when it was here before, and that decision is not controlling. The question now simply is this: Was there a case for divorce pending in the lower court between the time the order was entered striking the wife's cross-action and the date that order was affirmed by this court, so as to support the continuance of the order for alimony during this period? 'A judgment cannot be treated as final so long...
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