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).

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 ecclesiastical courts. Lloyd v. Lloyd, 183 Ga. 751, 189 S.E. 903 (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).

"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).

As foreign alimony decrees occupy the same status as ordinary foreign money 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).

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); Frith v. Frith, 18 Ga. 273 (1855); Pennaman v. Pennaman, 153 Ga. 647, 112 S.E. 829 (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).

Party against whom alimony is allowed, should have notice and an opportunity of being heard. Goss v. Goss, 29 Ga. 109 (1859); Luke v. Luke, 154 Ga. 800, 115 S.E. 666 (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).

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).

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).

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).

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).

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).

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).

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).

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).

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); Frankel v. Frankel, 212 Ga. 643, 94 S.E.2d 728 (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).

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).

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).

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).

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).

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); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946).

Judgment denying temporary alimony is appealable. Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575 (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).

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); Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198 (1945); Powell v. Powell, 200 Ga. 379, 37 S.E.2d 191 (1946); Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796 (1954); McKay v. McKay, 93 Ga. App. 42, 90 S.E.2d 627 (1955); Moody v. Moody, 237 Ga. 374, 228 S.E.2d 788 (1976), cert. denied, 431 U.S. 921, 97 S. Ct. 2192, 53 L. Ed. 2d 234 (1977); Pierce v. Pierce, 241 Ga. 96, 243 S.E.2d 46 (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).

Judgment for temporary alimony continues in force and effect until a final 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); George v. George, 233 Ga. 637, 212 S.E.2d 813 (1975).

Cited in Potter v. Potter, 145 Ga. 60, 88 S.E. 546 (1916); Webb v. Webb, 165 Ga. 305, 140 S.E. 872 (1927); Bradley v. Bradley, 168 Ga. 648, 148 S.E. 591 (1929); Giradot v. Giradot, 170 Ga. 905, 154 S.E. 352 (1930); Pace v. Bergquist, 173 Ga. 112, 159 S.E. 678 (1931); Walker v. Walker, 177 Ga. 743, 171 S.E. 292 (1933); Collins v. Collins, 180 Ga. 194, 178 S.E. 446 (1935); Mosely v. Mosely, 181 Ga. 543, 182 S.E. 849 (1935); Deaderick v. Deaderick, 182 Ga. 96, 185 S.E. 89 (1936); Kennedy v. Kennedy, 182 Ga. 586, 186 S.E. 553 (1936); Statham v. Statham, 182 Ga. 805, 187 S.E. 17 (1936); Grant v. Grant, 184 Ga. 339, 191 S.E. 98 (1937); Thomas v. Smith, 185 Ga. 243, 194 S.E. 502 (1937); Brim v. Brim, 185 Ga. 359, 195 S.E. 157 (1938); Bulloch v. Bulloch, 188 Ga. 699, 4 S.E.2d 630 (1939); Fulenwider v. Fulenwider, 188 Ga. 856, 5 S.E.2d 20 (1939); Hudson v. Hudson, 189 Ga. 410, 5 S.E.2d 912 (1939); Roberts v. Roberts, 190 Ga. 649, 10 S.E.2d 62 (1940); Ayers v. Ayers, 191 Ga. 777, 13 S.E.2d 778 (1941); Evans v. Evans, 191 Ga. 752, 14 S.E.2d 95 (1941); Allen v. Allen, 194 Ga. 591, 22 S.E.2d 136 (1942); Twilley v. Twilley, 195 Ga. 297, 24 S.E.2d 46 (1943); Verner v. Verner, 195 Ga. 592, 24 S.E.2d 666 (1943); Cox v. Cox, 197 Ga. 260, 29 S.E.2d 83 (1944); Aud v. Aud, 199 Ga. 714, 35 S.E.2d 198 (1945); Moss v. Moss, 200 Ga. 8, 36 S.E.2d 431 (1945); Lybrand v. Lybrand, 204 Ga. 312, 49 S.E.2d 515 (1948); Murray v. Murray, 206 Ga. 702, 58 S.E.2d 420 (1950); Johnson v. Johnson, 207 Ga. 508, 52 S.E.2d 908 (1950); Carter v. Carter, 208 Ga. 329, 66 S.E.2d 734 (1951); Meeks v. Meeks, 209 Ga. 588, 74 S.E.2d 861 (1953); Swinson v. Swinson, 210 Ga. 110, 78 S.E.2d 25 (1953); Harbuck v. Harbuck, 210 Ga. 220, 78 S.E.2d 508 (1953); Womble v. Womble, 214 Ga. 438, 105 S.E.2d 324 (1958); Wills v. Wills, 215 Ga. 556, 111 S.E.2d 355 (1959); Johnson v. Johnson, 218 Ga. 28, 126 S.E.2d 229 (1962); Adams v. Adams, 218 Ga. 286, 127 S.E.2d 365 (1962); Thome v. Thome, 218 Ga. 359, 127 S.E.2d 916 (1962); Roehrman v. Roehrman, 219 Ga. 52, 131 S.E.2d 558 (1963); Choate v. Choate, 219 Ga. 250, 132 S.E.2d 671 (1963); Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886 (1964); Hardee v. Hardee, 222 Ga. 309, 149 S.E.2d 686 (1966); Smith v. Smith, 222 Ga. 313, 149 S.E.2d 683 (1966); White v. Bowen, 223 Ga. 94, 153 S.E.2d 706 (1967); Lovett v. Lovett, 225 Ga. 251, 167 S.E.2d 590 (1969); Roberts v. Roberts, 226 Ga. 203, 173 S.E.2d 675 (1970); Chlupacek v. Chlupacek, 226 Ga. 520, 175 S.E.2d 834 (1970); Stroud v. Stroud, 226 Ga. 769, 177 S.E.2d 574 (1970); Fint v. Johnson, 229 Ga. 188, 190 S.E.2d 32 (1972); Wood v. Atkinson, 229 Ga. 179, 190 S.E.2d 46 (1972); Goldman v. Goldman, 230 Ga. 245, 196 S.E.2d 427 (1973); Maloof v. Maloof, 231 Ga. 811, 204 S.E.2d 162 (1974); Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974); Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975); Stern v. Stern, 235 Ga. 212, 219 S.E.2d 106 (1975); Daniel v. Daniel, 239 Ga. 466, 238 S.E.2d 108 (1977); Wills v. Wills, 239 Ga. 656, 238 S.E.2d 360 (1977); Carter v. Carter, 240 Ga. 597, 242 S.E.2d 94 (1978); Antico v. Antico, 241 Ga. 294, 244 S.E.2d 820 (1978); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Stitt v. Stitt, 243 Ga. 730, 256 S.E.2d 461 (1979); Brodie v. Brodie, 155 Ga. App. 593, 271 S.E.2d 725 (1980); McKinnon v. McKinnon, 158 Ga. App. 776, 282 S.E.2d 220 (1981); Upton v. Duck, 249 Ga. 267, 290 S.E.2d 92 (1982); Shelor v. Shelor, 259 Ga. 462, 383 S.E.2d 895 (1989).

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).

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).

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).

Rules of evidence need not be strictly enforced in temporary alimony hearings. Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (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); Gray v. Gray, 226 Ga. 767, 177 S.E.2d 575 (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); Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628 (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).

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).

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); Huggins v. Huggins, 202 Ga. 738, 44 S.E.2d 778 (1947); Fried v. Fried, 210 Ga. 457, 80 S.E.2d 796 (1954); White v. Bowen, 223 Ga. 94, 153 S.E.2d 706 (1967); Leonard v. Leonard, 236 Ga. 623, 225 S.E.2d 9 (1976); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977); Gordon v. Gordon, 244 Ga. 21, 257 S.E.2d 528 (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); Maxwell v. Maxwell, 177 Ga. 483, 170 S.E. 362 (1933); Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258 (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).

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); Hodges v. Hodges, 235 Ga. 848, 221 S.E.2d 597 (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).

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); Preston v. Preston, 160 Ga. 200, 127 S.E. 860 (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); Preston v. Preston, 160 Ga. 200, 127 S.E. 860 (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).

Judge is not bound to hear expert evidence as to counsel fees. Bradley v. Bradley, 233 Ga. 83, 210 S.E.2d 1 (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).

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).

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).

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).

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); Walton v. Walton, 219 Ga. 729, 135 S.E.2d 886 (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); McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967); Barnett v. Barnett, 231 Ga. 808, 204 S.E.2d 168 (1974); Childre v. Childre, 237 Ga. 437, 228 S.E.2d 829 (1976); Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404 (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).

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).

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).

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). See also Methvin v. Methvin, 15 Ga. 97, 60 Am. Dec. 664 (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); Ray v. Ray, 106 Ga. 260, 32 S.E. 91 (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).

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); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697 (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).

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); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697 (1953).

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).

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).

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).

Discretion of trial court not controlled unless abused.

- Supreme Court will not control the discretion of the trial court in allowing temporary alimony, unless it has been flagrantly abused. Carlton v. Carlton, 44 Ga. 216 (1871); Besore v. Besore, 49 Ga. 378 (1873); Etheridge v. Etheridge, 149 Ga. 44, 99 S.E. 37 (1919); Metcalf v. Metcalf, 153 Ga. 775, 112 S.E. 828 (1922); Osborne v. Osborne, 157 Ga. 902, 122 S.E. 877 (1924); Brown v. Brown, 159 Ga. 323, 125 S.E. 712 (1924); Preston v. Preston, 160 Ga. 200, 127 S.E. 860 (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); Chambless v. Chambless, 214 Ga. 431, 105 S.E.2d 221 (1958); Johnson v. Johnson, 236 Ga. 647, 225 S.E.2d 36 (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); Moss v. Moss, 196 Ga. 340, 26 S.E.2d 628 (1943); Cook v. Cook, 197 Ga. 703, 30 S.E.2d 479 (1944); Hightower v. Hightower, 202 Ga. 643, 44 S.E.2d 116 (1947); Brannen v. Brannen, 208 Ga. 88, 65 S.E.2d 161 (1951); Golden v. Golden, 209 Ga. 915, 76 S.E.2d 697 (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); Frankel v. Frankel, 212 Ga. 643, 94 S.E.2d 728 (1956). See also Houston v. Houston, 186 Ga. 140, 197 S.E. 237 (1938); Childs v. Childs, 203 Ga. 9, 45 S.E.2d 418 (1947); Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258 (1972); Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893 (1973); Williams v. Williams, 243 Ga. 6, 252 S.E.2d 404 (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); Heaton v. Heaton, 102 Ga. 578, 27 S.E. 677 (1897); Kelly v. Kelly, 146 Ga. 362, 91 S.E. 120 (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).

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).

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). See also Gaulding v. Gaulding, 184 Ga. 689, 192 S.E. 724 (1937); Hall v. Hall, 185 Ga. 502, 195 S.E. 731 (1938); Bartlett v. Bartlett, 228 Ga. 541, 186 S.E.2d 754 (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).

Abuse of discretion is legal ground for reversing judgment for temporary alimony. Alford v. Alford, 190 Ga. 562, 9 S.E.2d 895 (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).

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).

Writ of fi. fa.

- Right to temporary alimony may be enforced by writ of fi. fa. Gibson v. Patterson, 75 Ga. 549 (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 (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).

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); Brodie v. Brodie, 155 Ga. App. 593, 271 S.E.2d 725 (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).

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).

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).

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).

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).

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).

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); O'Neil v. Williams, 232 Ga. 170, 205 S.E.2d 226 (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); O'Neil v. Williams, 232 Ga. 170, 205 S.E.2d 226 (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).

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 coercive 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 (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); Joyce v. Joyce, 236 Ga. 601, 225 S.E.2d 25 (1976). See also Coggins v. Coggins, 223 Ga. 421, 156 S.E.2d 40 (1967); Shepherd v. Shepherd, 223 Ga. 609, 157 S.E.2d 268 (1967); Sullivan v. Sullivan, 224 Ga. 679, 164 S.E.2d 130 (1968); Roberts v. Roberts, 229 Ga. 689, 194 S.E.2d 100 (1972); Duke v. Smith, 242 Ga. 207, 248 S.E.2d 617 (1978); Martin v. Martin, 244 Ga. 68, 257 S.E.2d 903 (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).

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).

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).

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).

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).

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 (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).

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).

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).

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).

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).

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).

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).

Enforcement of alimony judgment by attachment for contempt is not imprisonment for debt. Heflinger v. Heflinger, 172 Ga. 889, 159 S.E. 242 (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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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); Childs v. Childs, 203 Ga. 9, 45 S.E.2d 418 (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).

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 temporary 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, 1912C Am. Cas. 441 (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).

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).

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).

Am. Jur. 2d.

- 24A Am. Jur. 2d, Divorce and Separation, §§ 586 et seq., 774 et seq.

8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 212 et seq.

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.