Shepherd v. Shepherd

Decision Date10 July 1969
Docket NumberNo. 25247,25247
Citation225 Ga. 455,169 S.E.2d 314
PartiesCharles Richard SHEPHERD v. Jana Lou Clanton Butler SHEPHERD.
CourtGeorgia Supreme Court

Syllabus by the Court

1. The motion to dismiss the appeal is denied.

2. It was too late to appeal from the contempt order and temporary alimony award entered on December 19, 1968.

3. In the absence of any showing in the record to the contrary, it must be assumed that the trial judge correctly denied the motion to vacate the orders of December 19, 1968, and properly entered the order finding the husband in contempt for failure to pay attorney's fees.

4. The record shows sufficient notice to the husband of the citation for contempt by the wife, and the contempt order is not void for lack of service on the husband.

Pierre Howard, Decatur, for appellant.

James R. Venable, Atlanta, H. H. Hutchins, Lithonia, for appellee.

MOBLEY, Justice.

1. In the divorce, alimony, and child custody case between Charles Richard Shepherd and Jana Lou Clanton Butler Shepherd, notice of appeal was filed by the husband 'from the order dismissing the motion to vacate and finding the plaintiff in contempt entered in this action on May 2, 1969.'

Motion to dismiss the appeal has been filed by the wife on the ground that there is no order or judgment in the record such as that specified in the notice of appeal. Two orders dated May 2, 1969, are in the record, one denying a motion to vacate an order of December 19, 1968, and the other finding the husband in contempt of court for failure to pay attorney's fees.

From a consideration of the notice of appeal and the enumeration of errors, it appears that the appeal is from both of the orders entered on May 2, 1969, and the motion to dismiss is denied. See Ga.L.1968, pp. 1072, 1074 (Code Ann. § 6-809).

2. The first assignment of error asserts that the order entered December 19, 1968 which temporarily awarded specified personal property to the wife, and ordered the husband to pay $1,000 to attorneys for the wife, was not a valid order because the court had no jurisdiction to enter the order. Assignments of error 2 and 3 complain that the order of December 19, 1968, directing that the husband be arrested and placed in jail for contempt of the order previously rendered on the same day requiring him to deliver specified personal property to the wife, was void on the ground that there had been no contempt of a valid order.

Temporary alimony and contempt orders are appealable by direct appeal. Ga.L.1968, pp. 1072, 1073 (Code Ann. § 6-701). It was too late for an appeal from the orders of December 19, 1968, when the notice of appeal was filed on May 8, 1969. G.L.1965, pp. 18, 21, as amended (Code Ann. § 6-803).

3. Enumerated errors 4 and 5 contend that the court erred in its order of May 2, 1969, denying the husband's motion to vacate the orders of December 19, 1968, and in its order of the same date, finding the husband guilty of contempt for failing to pay attorney's fees, because the court did not have jurisdiction to issue the orders of December 19, 1968.

The motion to vacate was based on the contention that the husband and his counsel were not served with the wife's pleading of December 10, 1968, in which she prayed for attorney's fees, and had no notice that temporary alimony and possession of the personal property would be considered at the hearing of December 16, 1968, but thought the hearing was for the purpose of deciding temporary custody of the minor child. It was alleged that no mention was made of attorney's fees or personal property at the hearing.

In the wife's answer to the motion to vacate she alleged that a copy of the pleading filed by her was sent to an attorney of record for the husband, and that the husband and his present attorneys had notice of the...

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17 cases
  • Maloy v. Dixon
    • United States
    • Georgia Court of Appeals
    • September 6, 1972
    ...111(3), 166 S.E.2d 426. 'The burden is on the party alleging error to show it affirmatively by the record.' Shepherd v. Shepherd, 225 Ga. 455, 457, 169 S.E.2d 314, 316. As will hereafter appear, certain of the enumerations of error are dependent upon matter to be found only in the interroga......
  • Redwing Carriers, Inc. v. Knight
    • United States
    • Georgia Court of Appeals
    • September 20, 1977
    ...find no reversible error. "The burden is on the party alleging error to show it affirmatively by the record." Shepherd v. Shepherd, 225 Ga. 455, 457, 169 S.E.2d 314, 316 (1969). 11. Similarly, no cause for reversal is shown with respect to the denial of defendant's requests to charge. These......
  • Tolbert v. Tolbert
    • United States
    • Georgia Court of Appeals
    • March 14, 1974
    ...showing in the record to the contrary, it must be assumed that order and judgment of the trial judge were correct. Shepherd v. Shepherd, 225 Ga. 455, 456, 169 S.E.2d 314. The stipulation shows that the parties agree that there have been no violations of the agreement of the parents of these......
  • Titan Constr. Co. v. CBC Nat'l Bank
    • United States
    • U.S. District Court — Southern District of Georgia
    • March 15, 2013
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