O.C.G.A. § 19-6-3 (2019)

Annotations

Law reviews. For article, “Attorney’s Fees in Alimony

and Divorce Cases,” see 19 Ga. B.J. 23 (1956). For article surveying developments in Georgia domestic relations law from mid1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For comment, “Antenuptial Agreements and Divorce in Georgia: Scherer v. Scherer,” see 17 Ga. L. Rev. 231 (1982).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PLEADINGS AND EVIDENCE ATTORNEY’S FEES DETERMINING AMOUNT OF AWARD DISCRETION OF TRIAL COURT ENFORCEMENT PROCEDURES REVISION OF ORDER General Consideration Law providing that alimony judgment may be enforced by writ of fi. fa. was constitutional. Wood v. Atkinson, 231 Ga. 271, 201 S.E.2d 394, 1973 Ga. LEXIS 669 (1973). History of application of section. - Prior to the passage of the married woman’s property act, it was the rule and practice in this state, almost as a matter of course, to grant temporary alimony to the wife in her pending divorce suit. Frankel v. Frankel, 212 Ga. 643, 94 S.E.2d 728, 1956 Ga. LEXIS 478 (1956). Temporary alimony is common-law right; it was an established right in England when we adopted the common law, and it is no less a common-law right because it grew up under the ecclesiasti-

cal courts. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903, 1937 Ga. LEXIS 417 (1937). Prior to any statute on the subject, it was held that the courts had the power to provide temporary alimony for the wife as incidental to the power to grant divorce. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903, 1937 Ga. LEXIS 417 (1937). “Order” of court contemplated by statute was order by court of this state and not an order of a court of a foreign state; thus, a court could not issue an alimony order by virtue of a foreign decree since the court’s power was merely to issue an ordinary money judgment based on the foreign decree. Henderson v. Henderson, 86 Ga. App. 812, 72 S.E.2d 731, 1952 Ga. App. LEXIS 1070 (1952). As foreign alimony decrees occupy the same status as ordinary foreign money

General Consideration (Cont’d) judgments so far as Georgia courts are concerned, such decrees must be reduced to judgment in this state before the decrees can be enforced in this state. When the decrees are reduced to judgment in Georgia, the decrees can only be enforced by execution as other money judgments. Henderson v. Henderson, 86 Ga. App. 812, 72 S.E.2d 731, 1952 Ga. App. LEXIS 1070 (1952). Two prerequisites to temporary alimony award. - Two things are necessary to entitle the plaintiff in divorce to temporary alimony, namely, marriage, and the pendency of a suit for divorce, because the duty of the husband to support his wife is based upon the existence of a marriage between them. Methvin v. Methvin, 15 Ga. 97, 1854 Ga. LEXIS 8 (1854); Frith v. Frith, 18 Ga. 273, 1855 Ga. LEXIS 187 (1855); Pennaman v. Pennaman, 153 Ga. 647, 112 S.E. 829, 1922 Ga. LEXIS 140 (1922). Before temporary alimony can be allowed, there must be pending suit for divorce or for alimony; and, if there is neither, no allowance for temporary alimony can be made. Sellers v. Sellers, 175 Ga. 47, 164 S.E. 769, 1932 Ga. LEXIS 184 (1932). Party against whom alimony is allowed, should have notice and an opportunity of being heard. Goss v. Goss, 29 Ga. 109, 1859 Ga. LEXIS 291 (1859); Luke v. Luke, 154 Ga. 800, 115 S.E. 666, 1923 Ga. LEXIS 398 (1923). Existing conjugal relation. - Right to temporary alimony, including attorney’s fees, rests upon existing conjugal relation; and when a final verdict and decree of divorce has been granted to the parties prior to the institution by the former wife of an ancillary motion or petition for attorney’s fees, and since marital relation was entirely dissolved and destroyed, the rights of the former wife to recover and the liability of the former husband to pay temporary alimony were extinguished. Harrison v. Harrison, 208 Ga. 70, 65 S.E.2d 173, 1951 Ga. LEXIS 544 (1951). Status as spouse impacts awards. - Woman’s right to alimony, attorney’s fees, and interlocutory relief depends upon her

present - not past or future - status as wife. Until a challenged divorce judgment is actually set aside, there is no pending action for divorce or permanent alimony as is required for the grant of temporary alimony or other relief. Thome v. Thome, 218 Ga. 359, 127 S.E.2d 916, 1962 Ga. LEXIS 500 (1962). Instances in which court cannot award alimony. - Court cannot award alimony when proceedings were not under former Code 1933, § 30-204 (see now O.C.G.A. § 19-6-3) for temporary alimony pending an action for divorce, or under former Code 1933, § 30-213 (see now O.C.G.A. § 19-6-10) for alimony when no action for divorce is pending, these being the only two instances when a court can award alimony. Henderson v. Henderson, 86 Ga. App. 812, 72 S.E.2d 731, 1952 Ga. App. LEXIS 1070 (1952). No final adjudication of property rights at temporary alimony hearing. - Trial court may not at temporary alimony hearing make final adjudication of property rights of those parties before it. Walton v. Walton, 223 Ga. 85, 153 S.E.2d 554, 1967 Ga. LEXIS 423 (1967). Effect of spouse’s death on right to temporary alimony. - When the husband dies before an order awarding temporary alimony has been entered by the court and before a divorce has been granted, the wife’s right to support during the period of separation until the date of death survives as a lien on the estate. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695, 1979 Ga. LEXIS 1009 (1979). When the husband dies after a divorce has been granted but before any determination of temporary or permanent alimony has been made, the wife’s inchoate right to temporary alimony from separation until the date of death survives as a lien on the estate. This determination can be made after the husband’s death, and the executor may attempt to prove any disability which would deprive the wife of her right to alimony. Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695, 1979 Ga. LEXIS 1009 (1979). No hearing before successor judge. - Order by the successor judge had to be reversed because no hearing on the wife’s motion for temporary alimony was held by

the successor judge prior to the entry of an order, and there was no suggestion in the record that the judge conducted an independent review of the evidence previously submitted by the parties akin to a permissible review of affidavits. Triola v. Triola, 299 Ga. 220, 787 S.E.2d 206, 2016 Ga. LEXIS 413 (2016). Judge is authorized to deny temporary alimony when there is evidence that wife voluntarily abandoned husband, or when there is evidence that the separation between the husband and wife was caused by the adultery of the wife, uncondoned by the husband. Bullock v. Bullock, 188 Ga. 699, 4 S.E.2d 630, 1939 Ga. LEXIS 600 (1939). When wife has willfully deserted husband, it is error to award temporary alimony. Hudson v. Hudson, 189 Ga. 410, 5 S.E.2d 912, 1939 Ga. LEXIS 716 (1939). Wife is not entitled to an award of temporary alimony or attorney’s fees since it appears without dispute that she abandoned her husband and refuses to live with him without just cause. Mullikin v. Mullikin, 200 Ga. 638, 38 S.E.2d 281, 1946 Ga. LEXIS 312 (1946); Frankel v. Frankel, 212 Ga. 643, 94 S.E.2d 728, 1956 Ga. LEXIS 478 (1956). When wife abandoned husband without just cause, it is the duty of the court to deny temporary alimony and attorney’s fees. Acree v. Acree, 201 Ga. 359, 40 S.E.2d 54, 1946 Ga. LEXIS 251 (1946). Decree for temporary alimony is rendered void by subsequent voluntary cohabitation of the parties. Embry v. Embry, 228 Ga. 468, 186 S.E.2d 104, 1971 Ga. LEXIS 598 (1971). Visitation privileges and alimony. - Neither visitation privileges nor alimony should be conditioned upon compliance with the other. Griffin v. Griffin, 226 Ga. 781, 177 S.E.2d 696, 1970 Ga. LEXIS 686 (1970). Spouse’s right to use credit following temporary alimony award. - While the court is authorized to prohibit the wife from using the credit of the husband for necessaries in an award of temporary alimony, the wife is a feme sole as to her separate estate and the court has no power to prohibit her from using credit extended solely to her in her individual

capacity. Barnett v. Barnett, 231 Ga. 808, 204 S.E.2d 168, 1974 Ga. LEXIS 1245 (1974). Findings of fact and law not required in temporary alimony proceeding. - Because merits are not in issue, proceedings on temporary alimony do not require findings of fact and law. Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915, 1977 Ga. LEXIS 1156 (1977). Grant or refusal of temporary alimony is question for the court; that of permanent alimony is for the jury to determine. Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198, 1945 Ga. LEXIS 359 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191, 1946 Ga. LEXIS 390 (1946). Judgment denying temporary alimony is appealable. Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575, 1970 Ga. LEXIS 677 (1970). Judgment for temporary alimony cannot be treated as final so long as either party has the right to have the judgment reviewed by the Supreme Court. George v. George, 233 Ga. 637, 212 S.E.2d 813, 1975 Ga. LEXIS 1402 (1975). Temporary alimony pending an action for permanent alimony does not cease with judgment in superior court, when the case is brought to the Supreme Court, but continues within the discretion of the court until the termination of the litigation in all the courts. Holleman v. Holleman, 69 Ga. 676, 1882 Ga. LEXIS 291 (1882); Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198, 1945 Ga. LEXIS 359 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191, 1946 Ga. LEXIS 390 (1946); Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796, 1954 Ga. LEXIS 349 (1954); McKay v. McKay, 93 Ga. App. 42, 90 S.E.2d 627, 1955 Ga. App. LEXIS 467 (1955); Moody v. Moody, 237 Ga. 374, 228 S.E.2d 788, 1976 Ga. LEXIS 1236 (1976), cert. denied, 431 U.S. 921, 97 S. Ct. 2192, 53 L. Ed. 2d 234, 1977 U.S. LEXIS 1853 (1977); Pierce v. Pierce, 241 Ga. 96, 243 S.E.2d 46, 1978 Ga. LEXIS 882 (1978). Temporary alimony continues when awarded until final termination of the cause. McKay v. McKay, 93 Ga. App. 42, 90 S.E.2d 627, 1955 Ga. App. LEXIS 467 (1955). Judgment for temporary alimony continues in force and effect until a final

General Consideration (Cont’d) judgment in the case, until the termination of the litigation of all courts, and as long as the case is pending, including litigation in the Supreme Court. Chlupacek v. Chlupacek, 226 Ga. 520, 175 S.E.2d 834, 1970 Ga. LEXIS 581 (1970); George v. George, 233 Ga. 637, 212 S.E.2d 813, 1975 Ga. LEXIS 1402 (1975). Pleadings and Evidence Requirement of pleadings and evidence of marriage. - No judgment for temporary alimony may be rendered in absence of pleadings and evidence that showed parties to be married. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191, 1946 Ga. LEXIS 390 (1946). Fact of the marriage of the parties is a matter to be determined in the hearing on temporary alimony. The determination of this issue in a temporary alimony hearing is not binding on a jury in a subsequent annulment trial. Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893, 1973 Ga. LEXIS 664 (1973). Pleadings in alimony case stand on same footing as those in injunction proceeding. Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628, 1943 Ga. LEXIS 351 (1943). Rules of evidence need not be strictly enforced in temporary alimony hearings. Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915, 1977 Ga. LEXIS 1156 (1977). Rules of evidence are not as strictly applied at an interlocutory hearing on an application for temporary alimony as in the final trial of the case. Gaulding v. Gaulding, 184 Ga. 689, 192 S.E. 724, 1937 Ga. LEXIS 611 (1937); Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575, 1970 Ga. LEXIS 677 (1970). On hearing for temporary alimony, judge may hear testimony either by affidavits or orally. Rogers v. Rogers, 103 Ga. 763, 30 S.E. 659, 1898 Ga. LEXIS 244 (1898); Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628, 1943 Ga. LEXIS 351 (1943). Pleadings sworn to considered in evidence without formal introduction. - On the hearing of an application for temporary alimony, pleadings sworn to from the knowledge of the affiant, and not from the affiant’s own information and

belief, may be considered in evidence without formal introduction. Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628, 1943 Ga. LEXIS 351 (1943). Attorney’s Fees Attorney’s fees are treated as part of temporary alimony and may be allowed by the court although there was no separate prayer for those fees. Stokes v. Stokes, 127 Ga. 160, 56 S.E. 303, 1906 Ga. LEXIS 782 (1906); Durham v. Durham, 160 Ga. 586, 128 S.E. 788, 1925 Ga. LEXIS 213 (1925); McClain v. McClain, 237 Ga. 80, 227 S.E.2d 5, 1976 Ga. LEXIS 1157 (1976); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870, 1977 Ga. LEXIS 1514 (1977); Ford v. Ford, 245 Ga. 569, 266 S.E.2d 183, 1980 Ga. LEXIS 858 (1980). Statute comprehended allowance to the wife of attorney’s fees for representing her in the case as a part of temporary alimony. Thomas v. Smith, 185 Ga. 243, 194 S.E. 502, 1937 Ga. LEXIS 708 (1937); Brim v. Brim, 185 Ga. 359, 195 S.E. 157, 1938 Ga. LEXIS 424 (1938). Attorney fees are part of temporary alimony. Tucker v. Tucker, 164 Ga. App. 477, 298 S.E.2d 159, 1982 Ga. App. LEXIS 2841 (1982). “Expenses of litigation” referred to in statute were those incurred in divorce or alimony action. Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893, 1973 Ga. LEXIS 664 (1973). Attorney’s fees were allowed as “expenses of litigation,” and were a part of temporary alimony within the terms of statute. Lewis v. Lewis, 215 Ga. 7, 108 S.E.2d 812, 1959 Ga. LEXIS 377 (1959). Counsel fees are allowed to the wife as a part of “expenses of litigation” pending an action for divorce or an action for the wife for permanent alimony. Woodward v. Woodward, 193 Ga. 892, 20 S.E.2d 430, 1942 Ga. LEXIS 504 (1942). Counsel fees for representing a wife in an application for permanent alimony are allowable as expenses of litigation, as temporary alimony is allowed. Powell v. Powell, 196 Ga. 694, 27 S.E.2d 393, 1943 Ga. LEXIS 411 (1943). Attorney’s fees may be awarded without specific award of temporary ali-

mony. Walton v. Walton, 223 Ga. 85, 153 S.E.2d 554, 1967 Ga. LEXIS 423 (1967). Attorney’s fees not recoverable when party voluntarily ends action. - When wife who had brought suit for divorce, permanent alimony, temporary alimony, and attorney’s fees notified her attorneys in writing that she did not desire to prosecute the case any further, and requested them to dismiss the action, the judge erred in allowing her attorneys to continue the prosecution in their own behalf, in order to prove and recover attorney’s fees for the services rendered in the case by them, and in view of the statutes and public policy in this state relating to the subject, the judgment awarding attorney’s fees was an abuse of discretion by the judge, and would be reversed. Williams v. Williams, 188 Ga. 536, 4 S.E.2d 195, 1939 Ga. LEXIS 568 (1939). Rationale behind award of temporary alimony. - Temporary alimony is awarded to afford wife (now either party) means of contesting all issues between herself and her husband in such a case. La Fitte v. La Fitte, 171 Ga. 404, 155 S.E. 521, 1930 Ga. LEXIS 365 (1930); Huggins v. Huggins, 202 Ga. 738, 44 S.E.2d 778, 1947 Ga. LEXIS 532 (1947); Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796, 1954 Ga. LEXIS 349 (1954); White v. Bowen, 223 Ga. 94, 153 S.E.2d 706, 1967 Ga. LEXIS 427 (1967); Leonard v. Leonard, 236 Ga. 623, 225 S.E.2d 9, 1976 Ga. LEXIS 965 (1976); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870, 1977 Ga. LEXIS 1514 (1977); Gordon v. Gordon, 244 Ga. 21, 257 S.E.2d 528, 1979 Ga. LEXIS 1086 (1979). Necessity of allowance of attorney’s fees. - Allowance of attorney’s fees is necessary provision to enable wife (now either party) to properly protect her interest, which has been recognized from earliest times. Preston v. Preston, 160 Ga. 200, 127 S.E. 860, 1925 Ga. LEXIS 117 (1925); Maxwell v. Maxwell, 177 Ga. 483, 170 S.E. 362, 1933 Ga. LEXIS 334 (1933); Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258, 1972 Ga. LEXIS 865 (1972). Wife might be lawfully awarded temporary alimony in the form of attorney fees to enable her to prosecute her case even though she ultimately loses it. Sullivan v. Sullivan, 224 Ga. 679, 164 S.E.2d 130, 1968 Ga. LEXIS 900 (1968).

Allowance for attorney’s fees should be sufficient to ensure to the wife proper legal representation by a competent attorney; and the exercise of sound legal discretion in applying these principles in the allowance of attorney’s fees will not be disturbed. Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258, 1972 Ga. LEXIS 865 (1972); Hodges v. Hodges, 235 Ga. 848, 221 S.E.2d 597, 1976 Ga. LEXIS 1464 (1976). Granting of allowance for attorney’s fees is properly function of judge as an incident to the grant of temporary alimony for the purpose of enabling the wife to be properly represented in the litigation. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278, 1940 Ga. LEXIS 370 (1940). Judicial discretion as to allowed sum of attorney fees. - Judge may allow as counsel fees such sum as in the judge’s discretion appears proper under all the facts and circumstances of the case, although there is no evidence before the judge fixing any amount as the value of the services rendered and to be rendered by the plaintiff’s counsel. Sweat v. Sweat, 123 Ga. 801, 51 S.E. 716, 1905 Ga. LEXIS 603 (1905); Preston v. Preston, 160 Ga. 200, 127 S.E. 860, 1925 Ga. LEXIS 117 (1925). Criterion for amount of attorney’s fees. - Reasonable compensation for such counsel as are necessary in the case should be the criterion in determining the amount to be allowed as expenses of litigation. Rogers v. Rogers, 103 Ga. 763, 30 S.E. 659, 1898 Ga. LEXIS 244 (1898); Preston v. Preston, 160 Ga. 200, 127 S.E. 860, 1925 Ga. LEXIS 117 (1925). Litigation expenses may include transcription costs. - General requirement in civil cases that the cost of transcribing the evidence and the cost of the record were paid by the appellant did not prevent the appellant wife from being reimbursed these expenses by the appellee husband in divorce cases if the trial judge saw fit in the judge’s discretion to award such expenses. Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11, 1978 Ga. LEXIS 742 (1978). Judge is not bound to hear expert evidence as to counsel fees. Bradley v.

Attorney’s Fees (Cont’d) Bradley, 233 Ga. 83, 210 S.E.2d 1, 1974 Ga. LEXIS 685 (1974). While trial court is vested with sound discretion to award or refuse to award attorney fees based on the financial condition of parties and other circumstances of the case, the court may not decline to grant attorney fees solely because no expert evidence as to their value was presented. Webster v. Webster, 250 Ga. 57, 295 S.E.2d 828, 1982 Ga. LEXIS 996 (1982). It is error to require husband to reimburse for fees paid to attorneys in previous litigation between the parties in another court. Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893, 1973 Ga. LEXIS 664 (1973). Fee award modifiable while suit pending. - Although the grant of attorney fees is a final judgment which may be enforced by attachment or by writ notwithstanding reconciliation of the parties, this does not necessarily mean that the fee award, like other elements of temporary alimony, may not be modified by the court at any time while the suit is pending and is within the jurisdiction of the court. Haim v. Haim, 251 Ga. 618, 308 S.E.2d 179, 1983 Ga. LEXIS 929 (1983). Award of attorney fees as alimony is not subject to discharge in bankruptcy. Leonard v. Leonard, 236 Ga. 623, 225 S.E.2d 9, 1976 Ga. LEXIS 965 (1976). Determining Amount of Award Provision for temporary alimony is somewhat different in character and purpose from award of permanent alimony, inasmuch as it is designed to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce. Childs v. Childs, 203 Ga. 9, 45 S.E.2d 418, 1947 Ga. LEXIS 570 (1947); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870, 1977 Ga. LEXIS 1514 (1977). When parties have agreed upon annuity for maintenance, no temporary alimony will be allowed. McLaren v. McLaren, 33 Ga. 99 (1864). Court has full power and authority to make agreement between parties as to temporary alimony its judgment

under the facts of the case, and it is a valid judgment not subject to change without the intervention of the court, despite provision in the agreement that it should continue until further agreement of the parties. Evans v. Evans, 62 Ga. App. 618, 9 S.E.2d 99, 1940 Ga. App. LEXIS 379 (1940). Court may refuse to approve agreement if it is shown by one of the parties that the agreement was procured by fraud or duress. Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404, 1979 Ga. LEXIS 776 (1979). Trial judge is empowered to allow temporary alimony from date of separation to the date of the hearing. Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893, 1973 Ga. LEXIS 664 (1973). Amount of temporary alimony is not limited to fair proportion of husband’s income, but may trench upon the corpus of his estate. Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886, 1964 Ga. LEXIS 391 (1964). Proportion of estate to be given as temporary alimony is a matter of judicial discretion. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903, 1937 Ga. LEXIS 417 (1937). Available resources from which alimony might be paid. - It is proper for court to consider available resources from which alimony might be paid. Available resources is defined as either capacity to labor and earn or the ownership of property. Hannah v. Hannah, 191 Ga. 134, 11 S.E.2d 779, 1940 Ga. LEXIS 620 (1940); Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886, 1964 Ga. LEXIS 391 (1964). Necessities of wife and husband’s ability to pay are controlling factors in making an allowance for alimony. Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886, 1964 Ga. LEXIS 391 (1964); McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378, 1967 Ga. LEXIS 517 (1967); Barnett v. Barnett, 231 Ga. 808, 204 S.E.2d 168, 1974 Ga. LEXIS 1245 (1974); Childre v. Childre, 237 Ga. 437, 228 S.E.2d 829, 1976 Ga. LEXIS 1257 (1976); Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404, 1979 Ga. LEXIS 776 (1979). Factors to consider in award. - What will be a support for the wife pendente lite depends upon the wealth of the

husband, her personal income, if any, aside from his property, the number of children or others dependent upon him, and the circle of society in which she is accustomed to move; the amount is not limited to a fair proportion of income, but may trench upon the corpus of his estate. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903, 1937 Ga. LEXIS 417 (1937). Amount of temporary alimony is determined by respective wealth and earning capacity of the parties, and the standard of living before the separation. Hall v. Hall, 220 Ga. 677, 141 S.E.2d 400, 1965 Ga. LEXIS 604 (1965). Court may give consideration to securing for wife same social standing, comforts, and luxuries of life as she probably would have enjoyed had there been no separation. Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886, 1964 Ga. LEXIS 391 (1964). When it appears wife has separate estate, court should take into consideration the estate’s present value and annual income as compared to the husband’s and his obligations to support other members of the family before putting the entire burden of the wife’s support upon him. Hawes v. Hawes, 66 Ga. 142, 1880 Ga. LEXIS 31 (1880). See also Methvin v. Methvin, 15 Ga. 97, 1854 Ga. LEXIS 8 (1854). Judicial inquiry into cause and circumstances of separation. - On hearing of application for temporary alimony, judge may inquire into cause and circumstances of the separation. Rogers v. Rogers, 103 Ga. 763, 30 S.E. 659, 1898 Ga. LEXIS 244 (1898); Ray v. Ray, 106 Ga. 260, 32 S.E. 91, 1898 Ga. LEXIS 74 (1898). Trial court may consider the cause of separation in awarding temporary alimony. Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870, 1977 Ga. LEXIS 1514 (1977). Court has authority to award use of home and household goods to the wife as temporary alimony. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903, 1937 Ga. LEXIS 417 (1937); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697, 1953 Ga. LEXIS 431 (1953). Temporary alimony in form of temporary use and possession of property. - Trial court may award temporary

alimony in form of temporary use and possession of property, although in awarding temporary alimony in such form, the trial judge may not make a final adjudication of title or property rights. Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404, 1979 Ga. LEXIS 776 (1979). Reasonable allowance for temporary alimony is proper, even though husband may have no property or employment, and be merely of a robust health with an earning capacity. Taylor v. Taylor, 189 Ga. 110, 5 S.E.2d 374, 1939 Ga. LEXIS 664 (1939); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697, 1953 Ga. LEXIS 431 (1953). Discretion of Trial Court Temporary alimony is matter entirely within discretion of trial judge, and it was still the duty of the judge to allow a reasonable amount as temporary alimony for the support of the wife and for attorney’s fees, to enable her to support herself until the final trial of the case and enable her to employ counsel to assert her rights before a jury. Brown v. Brown, 169 Ga. 580, 151 S.E. 14, 1929 Ga. LEXIS 411 (1929). Broad judicial discretion. - In passing upon question of temporary alimony, trial judge is vested with broad discretion. Maxwell v. Maxwell, 177 Ga. 483, 170 S.E. 362, 1933 Ga. LEXIS 334 (1933). In granting or denying temporary alimony and attorney’s fees to the wife, pending a suit by or against her for divorce, the trial judge is vested with sound legal discretion. Long v. Long, 91 Ga. 606, 13 S.E.2d 349 (1941). Matter of temporary alimony is usually within the sound discretion of the trial judge. Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404, 1979 Ga. LEXIS 776 (1979). Temporary alimony may not be arbitrarily refused. - While judge, in the judge’s discretion, may refuse temporary alimony altogether, the judge may not arbitrarily refuse the temporary alimony. Maxwell v. Maxwell, 177 Ga. 483, 170 S.E. 362, 1933 Ga. LEXIS 334 (1933). Discretion of trial court not controlled unless abused. - Supreme Court will not control the discretion of the trial court in allowing temporary alimony,

Discretion of Trial Court (Cont’d) unless it has been flagrantly abused. Carlton v. Carlton, 44 Ga. 216, 1871 Ga. LEXIS 355 (1871); Besore v. Besore, 49 Ga. 378, 1873 Ga. LEXIS 380 (1873); Etheridge v. Etheridge, 149 Ga. 44, 99 S.E. 37, 1919 Ga. LEXIS 112 (1919); Metcalf v. Metcalf, 153 Ga. 775, 112 S.E. 828, 1922 Ga. LEXIS 170 (1922); Osborne v. Osborne, 157 Ga. 902, 122 S.E. 877, 1924 Ga. LEXIS 275 (1924); Brown v. Brown, 159 Ga. 323, 125 S.E. 712 (1924); Preston v. Preston, 160 Ga. 200, 127 S.E. 860, 1925 Ga. LEXIS 117 (1925); Tillman v. Tillman, 187 Ga. 567, 1 S.E.2d 676 (1939); Lybrand v. Lybrand, 204 Ga. 312, 49 S.E.2d 515, 1948 Ga. LEXIS 404 (1948); Chambless v. Chambless, 214 Ga. 431, 105 S.E.2d 221, 1958 Ga. LEXIS 449 (1958); Johnson v. Johnson, 236 Ga. 647, 225 S.E.2d 36, 1976 Ga. LEXIS 976 (1976). Discretion of the trial judge in allowing or disallowing temporary alimony will not be controlled unless that discretion is shown to have been flagrantly abused. Caswell v. Caswell, 179 Ga. 676, 177 S.E. 247, 1934 Ga. LEXIS 370 (1934); Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628, 1943 Ga. LEXIS 351 (1943); Cook v. Cook, 197 Ga. 703, 30 S.E.2d 479, 1944 Ga. LEXIS 322 (1944); Hightower v. Hightower, 202 Ga. 643, 44 S.E.2d 116, 1947 Ga. LEXIS 486 (1947); Brannen v. Brannen, 208 Ga. 88, 65 S.E.2d 161, 1951 Ga. LEXIS 285 (1951); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697, 1953 Ga. LEXIS 431 (1953). Judgment will not ordinarily be disturbed. - Unless under the peculiar facts and circumstances of a case a judgment allowing or refusing temporary alimony shows abuse of the discretion vested in the judge, the judge’s judgment will not be disturbed. Mathis v. Mathis, 199 Ga. 55, 33 S.E.2d 428, 1945 Ga. LEXIS 278 (1945); Frankel v. Frankel, 212 Ga. 643, 94 S.E.2d 728, 1956 Ga. LEXIS 478 (1956). See also Houston v. Houston, 186 Ga. 140, 197 S.E. 237, 1938 Ga. LEXIS 564 (1938); Childs v. Childs, 203 Ga. 9, 45 S.E.2d 418, 1947 Ga. LEXIS 570 (1947); Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258, 1972 Ga. LEXIS 865 (1972); Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893, 1973 Ga. LEXIS 664 (1973); Williams

v. Williams, 243 Ga. 6, 252 S.E.2d 404, 1979 Ga. LEXIS 776 (1979). When evidence conflicts. - When the testimony as to the material facts on an application for alimony is conflicting, and there is enough to support the finding of the lower court, the Supreme Court will not interfere with the judge’s discretion. Glass v. Wynn, 76 Ga. 319, 1886 Ga. LEXIS 27 (1886); Heaton v. Heaton, 102 Ga. 578, 27 S.E. 677, 1897 Ga. LEXIS 612 (1897); Kelly v. Kelly, 146 Ga. 362, 91 S.E. 120, 1917 Ga. LEXIS 307 (1917). When, on application for temporary alimony and attorney’s fees, the evidence is conflicting, the discretion of the judge in allowing such amounts of alimony and fees as seem reasonable and appropriate will not be disturbed by this court. Nolan v. Nolan, 179 Ga. 677, 177 S.E. 248, 1934 Ga. LEXIS 371 (1934). When, under the evidence, a marked conflict was presented as to the cause and circumstances of the separation of the parties, it could not be said that the refusal of the trial judge to allow temporary alimony was a flagrant abuse of discretion. Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628, 1943 Ga. LEXIS 351 (1943). When the trial judge inquires into the cause of the separation of the parties, and the evidence is conflicting as to the cause of the separation, the judge’s discretion in disallowing temporary alimony, including expenses of litigation, will not be controlling. Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575, 1970 Ga. LEXIS 677 (1970). See also Gaulding v. Gaulding, 184 Ga. 689, 192 S.E. 724, 1937 Ga. LEXIS 611 (1937); Hall v. Hall, 185 Ga. 502, 195 S.E. 731, 1938 Ga. LEXIS 469 (1938); Bartlett v. Bartlett, 228 Ga. 541, 186 S.E.2d 754, 1972 Ga. LEXIS 833 (1972). When the record shows there was a conflict in the evidence which authorized the trial court to use the court’s discretion in determining the amount of the court’s award, the Supreme Court will not interfere with the trial court’s discretion unless there is a flagrant abuse of discretion. Barnett v. Barnett, 231 Ga. 808, 204 S.E.2d 168, 1974 Ga. LEXIS 1245 (1974). Abuse of discretion is legal ground for reversing judgment for temporary alimony. Alford v. Alford, 190 Ga. 562, 9 S.E.2d 895, 1940 Ga. LEXIS 516 (1940).

Reversal of judgment. - When judge did not exercise discretion as to whether to allow temporary alimony, judgment must be reversed. Joyner v. Joyner, 197 Ga. 479, 29 S.E.2d 266, 1944 Ga. LEXIS 263 (1944). When wife was employed and owned property, grant of temporary alimony against insolvent husband was abuse of discretion. Hamilton v. Hamilton, 174 Ga. 624, 163 S.E. 158, 1932 Ga. LEXIS 104 (1932). Enforcement Procedures Writ of fi. fa. - Right to temporary alimony may be enforced by writ of fi. fa. Gibson v. Patterson, 75 Ga. 549, 1885 Ga. LEXIS 177 (1885). Alimony may be collected by garnishment unless husband shows that new conditions have arisen justifying a change in terms. Halpern v. Austin, 385 F. Supp. 1009, 1974 U.S. Dist. LEXIS 5685 (N.D. Ga. 1974). Contempt and garnishment as enforcement methods. - Alimony judgment may be enforced either by execution or by attachment for contempt against the person of the husband, and the two remedies for the judgment’s enforcement may be lawfully and concurrently pursued to work a satisfaction of the judgment and neither one can be pled in abatement of the other. Lenett v. Lutz, 215 Ga. 369, 110 S.E.2d 628, 1959 Ga. LEXIS 477 (1959). Both garnishment and contempt actions may be pursued simultaneously for the collection or satisfaction of the payments owed. Herring v. Herring, 138 Ga. App. 145, 225 S.E.2d 697, 1976 Ga. App. LEXIS 2086 (1976); Brodie v. Brodie, 155 Ga. App. 593, 271 S.E.2d 725, 1980 Ga. App. LEXIS 2693 (1980). Both contempt and garnishment are appropriate methods of enforcing temporary alimony. Morrison v. Morrison, 153 Ga. App. 818, 266 S.E.2d 521, 1980 Ga. App. LEXIS 1992 (1980). Execution for alimony may also issue at same time as proceedings for contempt are initiated, and the proceeding for contempt does not prevent or suspend the execution. Lipton v. Lipton, 211 Ga. 442, 86 S.E.2d 299, 1955 Ga. LEXIS 348 (1955).

Clerk of court is required by law to issue fi. fa. for payment of alimony on request of plaintiff; and a judgment need not be obtained from the court for that purpose. Stephens v. Stephens, 171 Ga. 590, 156 S.E. 188, 1930 Ga. LEXIS 510 (1930). When judgment for alimony is payable in installments, no fi. fa. issued can lawfully include any amount included in previous fi. fa. but, if such is done, it is a defect which may be cured by amendment. Stephens v. Stephens, 171 Ga. 590, 156 S.E. 188, 1930 Ga. LEXIS 510 (1930). Alimony judgments are subject to dormancy and revival statutes and any applicable statute of limitation. Bryant v. Bryant, 232 Ga. 160, 205 S.E.2d 223, 1974 Ga. LEXIS 892 (1974). Lump-sum alimony judgment is dormant after expiration of seven years and is not subject to revival after the expiration of ten years. Bryant v. Bryant, 232 Ga. 160, 205 S.E.2d 223, 1974 Ga. LEXIS 892 (1974). Alimony installments that became due within seven years preceding execution are collectible and enforceable. Bryant v. Bryant, 232 Ga. 160, 205 S.E.2d 223, 1974 Ga. LEXIS 892 (1974); O’Neil v. Williams, 232 Ga. 170, 205 S.E.2d 226, 1974 Ga. LEXIS 896 (1974). Revival of dormant installment payments of alimony judgments. - Installment payments of alimony judgments that are dormant are subject to being revived through the applicable statutory revival procedure. Bryant v. Bryant, 232 Ga. 160, 205 S.E.2d 223, 1974 Ga. LEXIS 892 (1974); O’Neil v. Williams, 232 Ga. 170, 205 S.E.2d 226, 1974 Ga. LEXIS 896 (1974). Temporary order regarding alimony pending appeal of final judgment is enforceable through contempt proceedings pending review of the divorce judgment in this court. Walker v. Walker, 239 Ga. 175, 236 S.E.2d 263, 1977 Ga. LEXIS 853 (1977). Distinction between civil and criminal contempt for nonpayment of alimony. - Purpose of civil contempt is to coerce compliance with court order; if alimony payments are current when alleged contemnor appears in court, a coer-

Enforcement Procedures (Cont’d) cive sentence would be inappropriate; full payment at time of hearing is not necessarily a defense to criminal contempt, however, because criminal contempt is imposed as punishment for past willful failure to obey court’s order (i.e., make timely payments). Hopkins v. Jarvis, 648 F.2d 981, 1981 U.S. App. LEXIS 12061 (5th Cir. 1981). Law makes nonpayment of alimony contempt regardless of whether order of court commands payment of alimony. Robbins v. Robbins, 221 Ga. 627, 146 S.E.2d 628, 1966 Ga. LEXIS 653 (1966); Joyce v. Joyce, 236 Ga. 601, 225 S.E.2d 25, 1976 Ga. LEXIS 951 (1976). See also Coggins v. Coggins, 223 Ga. 421, 156 S.E.2d 40, 1967 Ga. LEXIS 548 (1967); Shepherd v. Shepherd, 223 Ga. 609, 157 S.E.2d 268, 1967 Ga. LEXIS 626 (1967); Sullivan v. Sullivan, 224 Ga. 679, 164 S.E.2d 130, 1968 Ga. LEXIS 900 (1968); Roberts v. Roberts, 229 Ga. 689, 194 S.E.2d 100, 1972 Ga. LEXIS 737 (1972); Duke v. Smith, 242 Ga. 207, 248 S.E.2d 617, 1978 Ga. LEXIS 1143 (1978); Martin v. Martin, 244 Ga. 68, 257 S.E.2d 903, 1979 Ga. LEXIS 1106 (1979). When contempt is not proper remedy to compel obedience to judgment. - Contempt is not proper remedy to compel obedience to judgment that merely declares rights of parties in accordance with agreement between the parties in regard to the allowance of reasonable visitation privileges. The only portion of such a divorce and alimony decree which may be enforced by punishment for contempt is that which commands the parties to obey, and this has been construed only to extend to the payment of alimony unless the order expressly commands the parties to give full recognition of the others’ rights. Palmer v. Bunn, 218 Ga. 244, 127 S.E.2d 372, 1962 Ga. LEXIS 470 (1962). When contract setting alimony is incorporated in divorce decree, decree is enforceable by contempt. McClain v. McClain, 235 Ga. 659, 221 S.E.2d 561, 1975 Ga. LEXIS 960 (1975). Contempt proceeding impermissible when alimony award void. - 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. Hagan v. Hagan, 209 Ga. 313, 72 S.E.2d 295, 1952 Ga. LEXIS 479 (1952). When original judgment for divorce was void for lack of jurisdiction, court erred in requiring payment of alimony and attaching respondent as for contempt. Jones v. Jones, 181 Ga. 747, 184 S.E. 271, 1936 Ga. LEXIS 422 (1936). While the power to enforce a decree for alimony by attachment for contempt by the judges of the superior courts of this state is adequate yet, if in such a proceeding it appears that the judgment awarding alimony is void for any reason, the husband is privileged to collaterally attack the judgment, and in such case the court has no power to punish him for contempt. Allen v. Baker, 188 Ga. 696, 4 S.E.2d 642, 1939 Ga. LEXIS 606 (1939). Defenses to contempt for failure to pay alimony. - One defense to either civil or criminal contempt for failure to pay alimony and child support would be that payments were in fact timely made, and another defense common to both civil and criminal contempt would be that alleged contemnor is financially unable to make payments; an additional defense to civil contempt would be that payments, although not timely made, are current at time of hearing. Hopkins v. Jarvis, 648 F.2d 981, 1981 U.S. App. LEXIS 12061 (5th Cir. 1981). Estoppel to plead void award. - When a party, in temporary alimony proceedings, contends that he is not subject to a judgment therefor because he had made a final alimony settlement with his wife by contract, under the doctrine of estoppel by judgment, he is concluded in a subsequent contempt proceeding from contending that the judgment awarding temporary alimony was void because he was never his wife’s lawful husband. Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191, 1946 Ga. LEXIS 390 (1946). Contempt proceedings for refusal to abide by alimony decrees authorize only conditional punishment pending the contemnor purging oneself by paying such sums as the contemnor is able as shown by the evidence. Stanton v. Stanton, 223

Ga. 664, 157 S.E.2d 453, 1967 Ga. LEXIS 654 (1967). Attachment for contempt was civil proceeding in nature. - Purpose of the proceeding for contempt being to compel payment of money allowed as alimony, and not solely for the purpose of vindicating the authority of the court, the attachment of the husband for contempt was in the nature of a civil proceeding. Curtright v. Curtright, 187 Ga. 122, 200 S.E. 711, 1938 Ga. LEXIS 801 (1938). Attachment for contempt not available against nonresident. - Attachment for contempt is not an available remedy for failure to pay alimony when the husband is a nonresident. Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685, 1956 Ga. LEXIS 422 (1956). Enforcement by attachment against party resident in other county. - Superior court awarding alimony in virtue of the court’s jurisdiction originally invoked by the plaintiff in a divorce suit had jurisdiction to enforce the court’s payment by attachment for contempt against the plaintiff after the plaintiff had changed the plaintiff’s residence to another county. Curtright v. Curtright, 187 Ga. 122, 200 S.E. 711, 1938 Ga. LEXIS 801 (1938). Imprisonment for civil contempt in alimony case constitutionally permissible. - Imprisonment for civil contempt in a case involving alimony, when the contemnor, although ordered imprisoned, may purge oneself prior to the imprisonment, is constitutionally permissible. Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175, 1980 Ga. LEXIS 1076 (1980). Imprisonment for criminal contempt in alimony case constitutionally permissible. - Finding of criminal contempt with the sanction of unconditional imprisonment for nonpayment of alimony is constitutionally permissible. Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175, 1980 Ga. LEXIS 1076 (1980). Enforcement of alimony judgment by attachment for contempt is not imprisonment for debt. Heflinger v. Heflinger, 172 Ga. 889, 159 S.E. 242, 1931 Ga. LEXIS 236 (1931). Imprisonment for contempt is always conditional and solely within sound

discretion of judge and the judge may at any time, in the exercise of that discretion, discharge one so imprisoned. The Supreme Court will not interfere with the discretion vested in the trial judge unless the judge’s discretion has been manifestly abused. Corriher v. McElroy, 209 Ga. 885, 76 S.E.2d 782, 1953 Ga. LEXIS 443 (1953). When court should resort to imprisonment for contempt. - Imprisonment for contempt ought never to be resorted to, except as penal process, founded on the unwillingness of the party to obey; the moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party, because it is only the contempt, the disobedience upon which the power rests. Corriher v. McElroy, 209 Ga. 885, 76 S.E.2d 782, 1953 Ga. LEXIS 443 (1953). When uncontroverted evidence shows husband’s inability to pay judgment awarded for alimony, it is error to keep him in jail under an order adjudging him in contempt; but when his ability to pay may be drawn from the evidence and reasonable deductions therefrom, it is not erroneous to decline to discharge him from confinement. The punishment of the husband for contempt by confinement in jail is a remedial process to secure to the wife the alimony awarded her. Heflinger v. Heflinger, 172 Ga. 889, 159 S.E. 242, 1931 Ga. LEXIS 236 (1931). When the evidence showed without dispute that the defendant was financially unable to pay the sum awarded as alimony and attorney’s fees, it was error to adjudge that he was in contempt of court because of his failure to pay the sums. Porter v. Porter, 178 Ga. 784, 174 S.E. 527 (1934). Wife has no right to require that the defendant be imprisoned for contempt of court because of his failure to pay the full amount when he is unable to pay the full amount. We do not allow imprisonment for debt in this state. Corriher v. McElroy, 209 Ga. 885, 76 S.E.2d 782, 1953 Ga. LEXIS 443 (1953). Proof by husband of inability to comply with judgment for alimony is good defense to a rule for contempt. Snider v. Snider, 190 Ga. 381, 9 S.E.2d 654, 1940 Ga. LEXIS 492 (1940).

Revision of Order

Enforcement Procedures (Cont’d) Good faith showing. - It is not sufficient for defendant to show merely that he has no money, or property which he might convert into money, with which to satisfy the alimony installments, but it must be made to appear clearly that he has in good faith exhausted all the resources at his command and has made a diligent and bona fide effort to comply with the order of the court. Snider v. Snider, 190 Ga. 381, 9 S.E.2d 654, 1940 Ga. LEXIS 492 (1940). Determination of whether party is in contempt for failure to pay alimony is question for discretion of judge, and the Supreme Court will not interfere with the discretion vested in the trial judge unless that discretion has been manifestly abused. Burch v. Kenmore, 206 Ga. 277, 56 S.E.2d 508, 1949 Ga. LEXIS 448 (1949). Trial court has discretion whether or not, under the facts in a case, to adjudicate the defendant in contempt of court, and the discretion of the trial court will not be disturbed unless abused. Martin v. Martin, 209 Ga. 850, 76 S.E.2d 390, 1953 Ga. LEXIS 406 (1953). Trial court in a contempt case has wide discretion to determine whether the court’s orders have been violated. The court’s determination will not be disturbed on appeal in the absence of an abuse of discretion. Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175, 1980 Ga. LEXIS 1076 (1980). Modification of divorce decree in contempt proceeding. - Trial court has no authority in contempt proceeding to modify divorce decree. Stanley v. Stanley, 244 Ga. 417, 260 S.E.2d 328, 1979 Ga. LEXIS 1258 (1979). Court may not modify a previous decree in a contempt order; however, a court may always interpret and clarify the court’s own orders. The test to determine whether an order is clarified or modified is whether the clarification is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification. Kaufmann v. Kaufmann, 246 Ga. 266, 271 S.E.2d 175, 1980 Ga. LEXIS 1076 (1980).

When judge has fixed temporary alimony, right to amount allowed becomes absolute unless revoked or modified by the judge. Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198, 1945 Ga. LEXIS 359 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191, 1946 Ga. LEXIS 390 (1946). Order granting temporary alimony is always in breast of court, and the court is authorized at any time, in the exercise of sound discretion, to revise or revoke such an order. Brim v. Brim, 185 Ga. 359, 195 S.E. 157, 1938 Ga. LEXIS 424 (1938); Williams v. Williams, 194 Ga. 332, 21 S.E.2d 229, 1942 Ga. LEXIS 556 (1942). Court has power to alter or revoke at any time the court’s judgments awarding temporary alimony. Alford v. Alford, 190 Ga. 562, 9 S.E.2d 895, 1940 Ga. LEXIS 516 (1940). See also Banda v. Banda, 192 Ga. 5, 14 S.E.2d 479, 1941 Ga. LEXIS 403 (1941); Strickland v. Strickland, 201 Ga. 293, 39 S.E.2d 483, 1946 Ga. LEXIS 454 (1946); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697, 1953 Ga. LEXIS 431 (1953). Trial judge has wide discretion in fixing temporary alimony, and in subsequently modifying the temporary alimony. Williams v. Williams, 206 Ga. 341, 57 S.E.2d 190, 1950 Ga. LEXIS 343 (1950). Discretion in modifying prior order for temporary alimony is similar to discretion in granting or refusing such alimony, and an abuse of discretion in either case is legal ground for reversing the judgment. Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796, 1954 Ga. LEXIS 349 (1954). Right to revise temporary alimony not limited to instances when there is change in condition of parties. Brim v. Brim, 185 Ga. 359, 195 S.E. 157, 1938 Ga. LEXIS 424 (1938). Power of the trial court to set aside a prior order for alimony which has not been affirmed by the Supreme Court does not depend solely upon a change of conditions subsequent to the grant of the previous order. In all cases, the trial judge’s order

setting aside a prior award of temporary alimony must be based upon evidence, and the exercise of the judge’s discretion must be legal and not arbitrary. Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796, 1954 Ga. LEXIS 349 (1954). Court may consider party’s request for revision based on inability to pay. - If, after an allowance for temporary alimony and counsel fees, the husband becomes unable to meet the payments, he is entitled to show this, and the court has jurisdiction to entertain an application for a reduction of the amounts. Taylor v. Taylor, 189 Ga. 110, 5 S.E.2d 374, 1939 Ga. LEXIS 664 (1939); Childs v. Childs, 203 Ga. 9, 45 S.E.2d 418, 1947 Ga. LEXIS 570 (1947). Additional services rendered by attorney. - When it is shown that attorney was compelled to render additional services, court may increase temporary alimony. Snider v. Snider, 183 Ga. 734, 189 S.E. 512, 1937 Ga. LEXIS 379 (1937). Adultery as cause for modification of temporary alimony. - Adultery on the part of the wife subsequent to the grant of temporary alimony, or prior thereto but unknown to the husband until after the granting of the order for tempo-

rary alimony, is a sufficient cause to warrant the court in modifying or revoking the order. Jennison v. Jennison, 136 Ga. 202, 71 S.E. 244, 1911 Ga. LEXIS 482 (1911). Revocation or modification of previous order. - It is error, upon subsequent hearing, to revoke or modify previous order solely upon consideration of evidence adduced at previous hearing and additional evidence as to the value of the attorney’s services. Brim v. Brim, 185 Ga. 359, 195 S.E. 157, 1938 Ga. LEXIS 424 (1938). Temporary alimony award affirmed by Supreme Court. - Trial judge may not set aside award of temporary alimony when award has been affirmed by Supreme Court, in the absence of additional facts such as would authorize a revocation or modification of the prior order. Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796, 1954 Ga. LEXIS 349 (1954). After final decree in divorce and alimony action is rendered, trial court is without jurisdiction to award further counsel fees on application made subsequent to such final decree. Jones v. Jones, 221 Ga. 284, 144 S.E.2d 388, 1965 Ga. LEXIS 434 (1965).

RESEARCH REFERENCES Am. Jur. 2d. 24A Am. Jur. 2d, Divorce and Separation, §§ 586 et seq., 774 et seq. Am. Jur. Pleading and Practice Forms. 8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 212 et seq. C.J.S. 27B C.J.S., Divorce, § 511 et seq. ALR. Statute expressly or impliedly denying power to enforce by process of contempt, order, judgment, or decree, for money, as applicable to order or decree for alimony, 8 A.L.R. 1156. Right of wife to allowance of counsel fees to prosecute or defend appeal in matrimonial action, 18 A.L.R. 1494. Financial condition of parties as affecting allowance of suit money in divorce suit, 35 A.L.R. 1099.

Liability of husband in independent action for services rendered by attorney to wife in divorce suit, 42 A.L.R. 315. Nonpayment of alimony or suit money as ground for denying right to participate in trial or other proceeding in suit for divorce, 62 A.L.R. 663. Demand as condition precedent to enforcement of payment of alimony by contempt proceedings, 63 A.L.R. 1220. Findings or order upon application for alimony pendente lite in action for divorce or separation as res judicata, 105 A.L.R. 1406. Allowance against husband in suit for divorce, of amount for expense of taking deposition of wife or paying cost of her transportation to place of trial, 111 A.L.R. 1098. What provisions in divorce suit for financial benefit of wife, other than for

payment of money to her or her agents or attorneys, are enforceable by contempt proceedings, 124 A.L.R. 145. Power of appellate court to grant alimony, maintenance, or attorneys’ fees pending appeal in matrimonial suit, 136 A.L.R. 502. Contempt proceedings to enforce payment of alimony or support as affected by security for its payment or availability of other remedy for its enforcement, 136 A.L.R. 689. Right to allowance of counsel fees to wife in action for divorce or separation, as affected by misconduct or lack of good faith of her attorney, 150 A.L.R. 1181. Final decree or dismissal of suit for divorce as affecting subsequent enforceability by contempt or otherwise of past defaults in payment of temporary alimony, 154 A.L.R. 530. Decree of divorce a vinculo as affecting prior award of alimony or support ordered or decreed in a suit for divorce a mensa et thoro or for separate maintenance, 166 A.L.R. 1004. Order granting or refusing motion for temporary alimony or suit money in divorce action as appealable, 167 A.L.R. 360. Wife’s misconduct or fault as affecting her right to temporary alimony or suit money, 2 A.L.R.2d 307. Decree for alimony rendered in another state or country (or domestic decree based

thereon) as subject to enforcement by equitable remedies or by contempt proceedings, 18 A.L.R.2d 862. Pleading and burden of proof, in contempt proceedings, as to ability to comply with order for payment of alimony or child support, 53 A.L.R.2d 591. Use of affidavits to establish contempt, 79 A.L.R.2d 657. Right to credit for payments on temporary alimony pending appeal, against liability for permanent alimony, 86 A.L.R.2d 696. Wife’s possession of independent means as affecting her right to alimony pendente lite, 60 A.L.R.3d 728. Excessiveness or adequacy of money awarded as temporary alimony, 26 A.L.R.4th 1218. Court’s authority to award temporary alimony or suit money in action for divorce, separate maintenance, or alimony where the existence of a valid marriage is contested, 34 A.L.R.4th 814. Divorce: excessiveness or adequacy of combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14. Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent, 62 A.L.R.4th 180. Withholding visitation rights for failure to make alimony or support payments, 65 A.L.R.4th 1155.