Johnson v. Johnson
| Decision Date | 08 September 1977 |
| Docket Number | No. 32487,32487 |
| Citation | 239 Ga. 637,238 S.E.2d 425 |
| Parties | James Trimble JOHNSON v. Mary Ella Ackerly JOHNSON. |
| Court | Georgia Supreme Court |
Nagle & Johnston, Howard H. Johnston, Atlanta, for appellant.
Berger & Kessler, Michael A. Kessler, Charney K. Berger, Atlanta, for appellee.
This is an appeal in a divorce case by a former husband from the grant of additional attorney fees to the former wife after the grant of a divorce on motion for judgment on the pleadings. We will refer to the parties as husband and wife both before and after the divorce.
The wife filed her complaint for divorce on the ground of cruel treatment, and prayed for temporary and permanent alimony, specifically requesting attorney fees. The husband counterclaimed on the ground that the marriage was irretrievably broken. On June 30, 1976, the judge granted temporary alimony to the wife of $700 per month and $750 attorney fees "on account." On the same date in a "partial judgment and decree" the judge granted a divorce between the parties on motion for judgment on the pleadings. This judgment contained the following reservation: "All other issues including permanent alimony, support, expenses of litigation, attorneys fees and cost are hereby reserved for trial by the ultimate trier of facts."
On February 9, 1977, the judge signed an order reserving a ruling on the questions of attorney fees and expenses of litigation. On February 10, 1977, the jury returned a verdict for permanent alimony. On March 16, 1977, the judge held a hearing on attorney fees and expenses of litigation, and on the same date entered a final judgment on the verdict of the jury for permanent alimony and awarded additional attorney fees of $1750 and $413.62 as expenses of litigation.
1. The husband contends that no right was reserved in the judge to determine the issue of attorney fees and expenses of litigation in that all issues were reserved for trial by "the ultimate trier of facts," and the ultimate trier of facts was the jury.
There is no merit in this contention. The reservation listed the remaining issues in the case. A reasonable construction of the reservation is that each issue was reserved for the trier of fact (whether judge or jury) as to that issue.
2. The main contention of the husband is that when a divorce was granted on the pleadings, the marriage relationship no longer existed between the parties, and the trial judge had no authority to grant attorney fees and expenses of litigation, which are a part of temporary alimony, even though he reserved this issue.
The husband recognizes the rule that where the issues of divorce and permanent alimony are tried together, the application for attorney fees has been filed and the hearing held thereon prior to the final verdict and decree, and the judge has reserved judgment on the application, the award of attorney fees may be made after verdict. Bradley v. Bradley, 233 Ga. 83, 84(1), 210 S.E.2d 1 (1974). It is asserted, however, that notwithstanding the reservation, the judge could not grant attorney fees for representation of the wife in her permanent alimony claim after the dissolution of the marriage by...
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Odom v. Odom
...of attorney fees has been properly reserved by prior order. Hatchett v. Hatchett, 240 Ga. 103, 239 S.E.2d 512 (1977); Johnson v. Johnson, 239 Ga. 637, 238 S.E.2d 425 (1977); McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967); Crute v. Crute, 208 Ga. 724, 69 S.E.2d 255 (1952); Luke v. Lu......
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