General Consideration

Applicability of section. - Law was not intended to apply in determining whether person had lost domicile acquired in this state and has become domiciled in some other state. Williams v. Williams, 191 Ga. 437 , 12 S.E.2d 352 (1940).

Establishment of residence. - Law required both act and intent to establish residence, and either without the other was insufficient. Bufford v. Bufford, 223 Ga. 133 , 153 S.E.2d 718 (1967).

Domicile of man having family. - Domicile of man having family was place where family shall permanently reside, if in this state. Grimaud v. Knox-Georgia Homes, Inc., 210 Ga. 514 , 81 S.E.2d 476 (1954).

"Family" defined. - No definition of the word "family" as used in the law would be satisfactory that does not convey the idea of unity of the household in which were gathered the members of the family as one collective body under the management or control of the head thereof. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 , 52 S.E. 898 (1905).

Meaning of the word "family" is not necessarily identical with the meaning of the same word as used in the homestead and exemption laws, and there was a still further variation from the meaning in criminal laws and police regulations. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 , 52 S.E. 898 (1905).

"Permanently" defined. - Word "permanently" is used in these provisions in contradistinction from the word "temporarily." Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 151 , 128 S.E. 781 (1925); Grimaud v. Knox-Georgia Homes, Inc., 210 Ga. 514 , 81 S.E.2d 476 (1954).

"Residence" and "domicile" were not synonymous and convertible terms. Worsham v. Ligon, 144 Ga. 707 , 87 S.E. 1025 (1916); Avery v. Bower, 170 Ga. 202 , 152 S.E. 239 (1930); Bass v. Bass, 222 Ga. 378 , 149 S.E.2d 818 (1966); Pugh v. Jones, 131 Ga. App. 600 , 206 S.E.2d 650 (1974).

Trial court erred in finding that venue was proper in Effingham County, Georgia because the defendant, who maintained residences in both Effingham County and Chatham County, Georgia, was domiciled in Chatham County. Oglesby v. Deal, 311 Ga. App. 622 , 716 S.E.2d 749 (2011).

"Domicile," unlike "residence," means permanent place of abode, whereas "residence" is not necessarily permanent, and may be at some place other than the place of domicile. Avery v. Bower, 170 Ga. 202 , 152 S.E. 239 (1930).

Actual residence and intention to remain. - There must be concurrence of actual residence and intention to remain to acquire domicile. Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 , 52 S.E. 898 (1905); Worsham v. Ligon, 144 Ga. 707 , 87 S.E. 1025 (1916); Avery v. Bower, 170 Ga. 202 , 152 S.E. 239 (1930); Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981).

Prerequisites to change of domicile. - In order to change a person's domicile, a person must actually remove to another place with a present intention of remaining there as that person's place of domicile, or having removed, avow that person's intention of remaining there as the person's place of domicile, but such avowal may be proved by express declaration or acts equivalent thereto. Worsham v. Ligon, 144 Ga. 707 , 87 S.E. 1025 (1916); Bass v. Bass, 222 Ga. 378 , 149 S.E.2d 818 (1966).

For a person to change that person's domicile, it is essential that the person should have a bona fide intent to make the change. In addition, the person must also declare an intent to change the person's domicile and do some act in execution of such intent. Brandt v. Buckley, 147 Ga. 389 , 94 S.E. 233 (1917).

To effect a change of domicile there must be an avowed intent, which may be shown by declarations or acts equivalent thereto, and an actual removal. Bellamy v. Bellamy, 187 Ga. 804 , 2 S.E.2d 413 (1939).

Person may have several residences, but only one domicile. Avery v. Bower, 170 Ga. 202 , 152 S.E. 239 (1930).

Change in domicile involves exercise of volition and choice. - As to a person sui juris, the matter of making a change in domicile is one involving the exercise of volition and choice. Stanfield v. Hursey, 36 Ga. App. 394 , 136 S.E. 826 (1927).

There must be either tacit or explicit intention to change one's domicile before there is a change of legal residence. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981).

When length of stay away from domicile immaterial. - When an individual travels away from that individual's domicile for a time, it is immaterial whether such a stay is for one month or any number of months, provided it does not become so extended that it could be reasonably inferred that there is an actual intention to make a change of domicile. Venable v. Long Realty Co., 46 Ga. App. 803 , 169 S.E. 322 (1933).

There may be residence for long time at place not intended as permanent abode. - See Bush v. State, 10 Ga. App. 544 , 73 S.E. 697 (1912).

Rules stated in this section determine where suit should be instituted. Daniel v. Sullivan, 46 Ga. 277 (1872).

Domicile for purpose of legal action. - Domicile or legal residence for the purpose of action exists when there has been a concurrence of an actual residence and an intention to remain there permanently, which intention may be proved by acts. Mayo v. Ivan Allen-Marshall Co., 51 Ga. App. 250 , 180 S.E. 20 (1935).

One's legal residence for purpose of being sued was necessarily the same county as the person's domicile where domicile was determined by this statute. Pugh v. Jones, 131 Ga. App. 600 , 206 S.E.2d 650 (1974).

Role of Jury

Question of domicile is mixed question of law and fact, and is ordinarily one for jury and should not be determined by the court as a matter of law except in plain and palpable cases. Williams v. Williams, 226 Ga. 734 , 177 S.E.2d 481 (1970); Pugh v. Jones, 131 Ga. App. 600 , 206 S.E.2d 650 (1974); Milton v. Wilkes, 152 Ga. App. 362 , 262 S.E.2d 624 (1979).

Question of bona fides of intent to change domicile is one for jury determination. Brandt v. Buckley, 147 Ga. 389 , 94 S.E. 233 (1917).

Residence was a question of fact to be determined by the jury, so far as it involves ascertainment of the intention of the party. Jordan v. Carter, 60 Ga. 443 (1878); Battle v. Braswell, 107 Ga. 128 , 32 S.E. 838 (1899); Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 , 52 S.E. 898 (1905); Mims v. Jones, 135 Ga. 541 , 69 S.E. 824 (1910); Smith v. Smith, 136 Ga. 197 , 71 S.E. 158 (1911).

Defendant's liability to suit. - Whether defendant was liable to suit as resident was question for jury. Jordan v. Carter, 60 Ga. 443 (1878).

Question of domicile may be withdrawn from jury only if the evidence demands a finding that there has not been a change of domicile. Milton v. Wilkes, 152 Ga. App. 362 , 262 S.E.2d 624 (1979).

Application

Change of domicile not shown. - Trial court did not err when the court denied the father's motion to move a child custody action from Gwinnett County to DeKalb County because the father had not proved domicile in DeKalb County; while the father testified that the father moved to DeKalb County, the father's driver's license showed a Gwinnett County address eight months later and the father had not notified the father's homeowner's insurance company or the Internal Revenue Service of the move. Goyal v. Fifadara, 324 Ga. App. 567 , 751 S.E.2d 190 (2013).

Dismissal for lack of residency affirmed. - Trial court's finding that a wife was not a resident of DeKalb County, Georgia, and its order dismissing her DeKalb County divorce case were affirmed where the parties had sold their home in Georgia six months before the divorce was filed, and the wife's tax forms stated that she did not maintain a home in the United States, but rather that her bona fide residence was in South Africa; although the wife claimed that she intended to return to DeKalb County, the trial court properly applied the principle that the testimony of a party who offered herself as a witness in her own behalf at trial was to be construed most strongly against her when it was self-contradictory, vague, or equivocal. Conrad v. Conrad, 278 Ga. 107 , 597 S.E.2d 369 (2004).

Person's domicile is not changed merely by the person's enlistment in Army and that person's transfer or assignment by military order to another jurisdiction. Squire v. Vazquez, 52 Ga. App. 712 , 184 S.E. 629 (1936).

Father did not reside in Georgia for purposes of recording and modifying an Alabama child support order under O.C.G.A. § 19-11-172(a) of the Uniform Interstate Family Support Act, O.C.G.A. § 19-11-100 et seq., because while the father had been stationed in Georgia in the Army, the father was registered to vote in Alabama, had a driver's license there, and lived in Alabama with his wife, two sons, and his father; thus, the father was domiciled in Alabama for the purposes of O.C.G.A. § 19-2-1 . Kean v. Marshall, 294 Ga. App. 459 , 669 S.E.2d 463 (2008).

Military personnel may change domicile. - It is as competent for a soldier to abandon the soldier's domicile or residence and acquire a new one as it is for any other citizen to do so. Engram v. Faircloth, 205 Ga. 577 , 54 S.E.2d 598 (1949); Smiley v. Davenport, 139 Ga. App. 753 , 229 S.E.2d 489 (1976).

Effect of transfer to mental hospital on domicile. - Person's domicile is not changed merely by the person's transference to a mental hospital located in another jurisdiction, nor by an adjudication of a court of competent jurisdiction that the person is of unsound mind, remanding the person to a hospital for the insane, nor is the person's domicile changed by the appointment of a guardian for the person's estate. Squire v. Vazquez, 52 Ga. App. 712 , 184 S.E. 629 (1936).

Mentally incompetent person may lack capacity to intend change of domicile. - Person who is mentally incompetent and who moves from one place to another may lack the mental capacity to change his or her domicile. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981).

Boarding. - When a single person boards and lodges four nights in the week in a certain district for the purpose of teaching school such district will constitute the person's residence. Hinton v. Lindsay, 20 Ga. 746 (1856).

Criminal flight from state. - Change of domicile is not effected by a person fleeing from the state after wounding another when the person's family continues to live in the former state. Barrett & Williford v. Black, Cobb & Co., 25 Ga. 151 (1858).

Domicile of convict sent to a penitentiary in a county other than that of the convict's domicile is not changed by this reason. Barton v. Barton, 74 Ga. 761 (1885).

Effect of abandoning family. - When a man has a family but has abandoned the family, the man's residence must be determined under the latter part of the section, namely, that pertaining to persons with no family. Gilmer v. Gilmer, 32 Ga. 685 (1861); Smith v. Smith, 136 Ga. 197 , 71 S.E. 158 (1911).

Change of residence by wife. - Wife cannot, in the absence of the husband, and without his consent, change the family residence so as to change the husband's venue. Sindall v. H.C. Thacker & Co., 56 Ga. 51 (1876).

Pendency of divorce proceeding in another state. - Mere pendency of a suit for divorce in another state, which was dismissed only a short time before the filing of a suit for divorce in this state, does not disprove the positive testimony of the plaintiff that the plaintiff had been a bona fide resident of this state for 12 months prior to the filing of the plaintiff's suit. Bellamy v. Bellamy, 187 Ga. 804 , 2 S.E.2d 413 (1939).

Residence taken upon marital separation not domicile when husband disavows as such. - When the husband had lived with the wife in the county in which a suit for divorce and alimony was filed and took an apartment in another county upon their separation which he disavowed as his domicile, he did not abandon the former county as his domicile. Smith v. Smith, 223 Ga. 551 , 156 S.E.2d 916 (1967).

In a family violence case in which the respondent has left the family home but has not avowed an intention to remain in that new location, venue is proper both in the county of the family's residence and in the county to which the respondent has relocated. Davis-Redding v. Redding, 246 Ga. App. 792 , 542 S.E.2d 197 (2000).

No intention to abandon residence. - Man having a permanent residence in one county does not lose such residence by accepting a contract in another county, and renting a house in the latter county to which he moved his family, when it is not his intention to abandon his former domicile in the county first referred to. Knight v. Bond, 112 Ga. 828 , 38 S.E. 206 (1901).

Second house rented for special purpose not domicile. - Fact that defendant removed to another county and there rented a house did not constitute a change of domicile since the removal was for the purpose of educating children, the former home was maintained, the incidents of citizenship there discharged, and there was at no time an intention to provide a fixed place of abode in the place of removal, or to there establish permanent residence. Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 151 , 128 S.E. 781 (1925).

Temporary departure from domicile. - If a person leaves the place of the person's domicile temporarily, or for a particular purpose, and does not actually remove to another place with the intention of remaining there indefinitely, the person will not be considered as having changed the person's legal residence. Venable v. Long Realty Co., 46 Ga. App. 803 , 169 S.E. 322 (1933); Smith v. Smith, 223 Ga. 551 , 156 S.E.2d 916 (1967).

Temporary absence from county by man who has no family does not operate to change domicile. Bellamy v. Bellamy, 187 Ga. 804 , 2 S.E.2d 413 (1939).

Evidence sufficient to appoint father as guardian of adult autistic son who desired to change domicile to Georgia. - Decision granting a father guardianship of an adult autistic son was supported by sufficient evidence based on the son's desire to change domicile to the father's home, the son's desire to engage in more activities while at the father's home, as well as the testimony of the attorney appointed for the son, who indicated that while the son undoubtedly faced certain challenges due to autism, the son was not so mentally impaired to lack capacity to choose Georgia as the son's domicile. In the Interest of M. P., 338 Ga. App. 696 , 791 S.E.2d 592 (2016).

Cited in Smith v. Ellabelle-Eldora School Dist., 40 Ga. App. 561 , 150 S.E. 454 (1929); Cunningham v. Spurway, 50 Ga. App. 550 , 178 S.E. 762 (1935); Mayo v. Ivan Allen-Marshall Co., 51 Ga. App. 250 , 180 S.E. 20 (1935); Bellamy v. Bellamy, 187 Ga. 56 , 199 S.E. 745 (1938); Adams v. Adams, 191 Ga. 537 , 13 S.E.2d 173 (1941); Stewart v. Stewart, 195 Ga. 460 , 24 S.E.2d 672 (1943); Foster v. Foster, 207 Ga. 519 , 63 S.E.2d 318 (1951); Patterson v. Patterson, 208 Ga. 7 , 64 S.E.2d 441 (1951); Sikes v. Sims, 212 Ga. 391 , 93 S.E.2d 6 (1956); Stanton v. Stanton, 213 Ga. 545 , 100 S.E.2d 289 (1957); Allen v. McDermott, 110 Ga. App. 536 , 139 S.E.2d 143 (1964); Odom v. Beard, 114 Ga. App. 364 , 151 S.E.2d 468 (1966); Davis v. Mullis, 296 F. Supp. 1345 (S.D. Ga. 1969); Brady v. Stephenson, 227 Ga. 461 , 181 S.E.2d 387 (1971); Clark v. Hammock, 228 Ga. 157 , 184 S.E.2d 581 (1971); Hatcher v. Hatcher, 229 Ga. 249 , 190 S.E.2d 533 (1972); Midkiff v. Midkiff, 275 Ga. 136 , 562 S.E.2d 177 (2002); Sastre v. McDaniel, 293 Ga. App. 671 , 667 S.E.2d 896 (2008).

General Consideration

O.C.G.A. § 19-3-1 applies equally to both ceremonial and common-law marriages. Metropolitan Life Ins. Co. v. Lucas, 761 F. Supp. 130 (M.D. Ga. 1991).

"According to law" had reference to common law as expounded in Askew v. Dupree, 30 Ga. 173 (1860), and recognized by the legislature as then existing, but which on that feature was intended to be "regulated" by statute. Drewry v. State, 208 Ga. 239 , 65 S.E.2d 916 (1951), adopting dissenting opinion in Lefkoff v. Sicro, 189 Ga. 554 , 6 S.E.2d 687 (1939).

In order for valid marriage to exist there must be ceremonial marriage or common-law marriage entered into in good faith. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

To constitute valid marriage in this state, there must be parties able to contract. Connor v. Rainwater, 200 Ga. 866 , 38 S.E.2d 805 (1946).

Marriage is in law complete when parties able to contract have actually contracted to be man and wife in the forms and with the solemnities required by law. Pitts v. State, 147 Ga. 801 , 95 S.E. 706 (1918).

Discussion of the presumption of validity or invalidity of second marriage. See Scott v. Jefferson, 174 Ga. App. 651 , 331 S.E.2d 1 (1985).

Cited in White v. White, 41 Ga. App. 394 , 153 S.E. 203 (1930); Peacock v. Peacock, 196 Ga. 441 , 26 S.E.2d 608 (1943); Graves v. Carter, 207 Ga. 308 , 61 S.E.2d 282 (1950); Drewry v. State, 208 Ga. 239 , 65 S.E.2d 916 (1951); Goza v. State, 91 Ga. App. 842 , 87 S.E.2d 232 (1955); Hobby v. Burke, 227 F.2d 932 (5th Cir. 1955); Wolverine Ins. Co. v. Leach, 100 Ga. App. 570 , 112 S.E.2d 10 (1959); Toole v. Gallion, 221 Ga. 494 , 144 S.E.2d 360 (1965); Shepherd v. Shepherd, 233 Ga. 228 , 210 S.E.2d 731 (1974); Lavender v. Wilkins, 237 Ga. 510 , 228 S.E.2d 888 (1976); Riddle v. Riddle, 240 Ga. 515 , 241 S.E.2d 214 (1978); Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758 , 242 S.E.2d 483 (1978); Thompson v. Brown, 254 Ga. 191 , 326 S.E.2d 733 (1985); Dennis v. State, 220 Ga. App. 420 , 469 S.E.2d 494 (1996); Wright v. Goss, 229 Ga. App. 393 , 494 S.E.2d 23 (1997); Finch v. Dasgupta, 251 Ga. App. 637 , 555 S.E.2d 22 (2001).

Evidence

Evidence presented must show present intent to marry; an agreement to marry in the future is not sufficient. Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270 , 259 S.E.2d 675 (1979).

All presumptions necessary to make marriage valid attach on proof of formal ceremony and cohabitation by the parties under the belief that the parties were lawfully married. Fanning v. State, 46 Ga. App. 716 , 169 S.E. 60 (1933); Brewer v. Interstate Life & Accident Co., 56 Ga. App. 720 , 193 S.E. 909 (1937).

Presumption of capacity to contract marriage. - When marriage is regularly solemnized and parties live together, there is a presumption of capacity to contract marriage, and of the existence of all other facts necessary to render the marriage valid; and this presumption prevails until the contrary appears. Fanning v. State, 46 Ga. App. 716 , 169 S.E. 60 (1933); Brewer v. Interstate Life & Accident Co., 56 Ga. App. 720 , 193 S.E. 909 (1937); Addison v. Addison, 186 Ga. 155 , 197 S.E. 232 (1938); Brown v. Hogan, 72 Ga. App. 691 , 34 S.E.2d 619 (1945); Carter v. Graves, 206 Ga. 234 , 56 S.E.2d 917 (1949).

Presumption of validity of marriage. - Law favors validity of marriages, and marriage is presumed to be valid until the marriage's validity is negatived by disproving every reasonable possibility of the marriage's validity. Brown v. State, 208 Ga. 304 , 66 S.E.2d 745 (1951).

O.C.G.A. § 19-3-1 reflects Georgia's policy favoring the validity of marriages; validity is presumed absent proof negating the possibility of validity. Metropolitan Life Ins. Co. v. Lucas, 761 F. Supp. 130 (M.D. Ga. 1991).

Absence of proof of entry into a present marriage contract as required by O.C.G.A. § 19-3-1 supported the finding that a petitioner for year's support was not the decedent's common-law spouse. Holmes v. Holmes, 232 Ga. App. 434 , 502 S.E.2d 294 (1998).

Burden to show marriage invalid. - Burden is upon one who attacks validity of marriage to show that the marriage is invalid by clear, distinct, positive, and satisfactory proof. Fanning v. State, 46 Ga. App. 716 , 169 S.E. 60 (1933); Brewer v. Interstate Life & Accident Co., 56 Ga. App. 720 , 193 S.E. 909 (1937); Addison v. Addison, 186 Ga. 155 , 197 S.E. 232 (1938); Brown v. Hogan, 72 Ga. App. 691 , 34 S.E.2d 619 (1945).

Whether or not common law marriage exists is question of fact, requiring proof of simultaneous existence of all elements of O.C.G.A. § 19-3-1 . Gregg v. Barnes, 203 Ga. App. 549 , 417 S.E.2d 206 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 206 (1992); Dixon v. State, 217 Ga. App. 267 , 456 S.E.2d 758 (1995).

Act of living together as man and wife. - Marriage may be shown by such circumstances as act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of the marriage and the evidence in each case is for the jury. Murray v. Clayton, 151 Ga. App. 720 , 261 S.E.2d 455 (1979); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270 , 259 S.E.2d 675 (1979).

Relationship cannot be partial or periodic. - Evidence that parties held themselves out as married when it was to their benefit and maintained their non-marital status when it was to their benefit supported finding that there was no marriage as such legal relationship cannot be partial or periodic. Baynes v. Baynes, 219 Ga. App. 848 , 467 S.E.2d 195 (1996).

Agreement on which common-law marriage is founded must contain mutual intent to be married in praesenti, not a present intent to marry in the future. Hubbard v. State, 145 Ga. App. 714 , 244 S.E.2d 639 (1978).

Immediate agreement to become husband and wife. - To constitute a valid marriage per verba de praesenti there must be an agreement to become husband and wife immediately from the time when the mutual consent is given. An express future condition is absolutely fatal to a claim of marriage, and cannot be explained away by circumstances, as it shows mental reservations which are incompatible with consent, whether the condition relates to the creation of the marriage status, or to the duration of the relations of the parties. Peacock v. Peacock, 196 Ga. 441 , 26 S.E.2d 608 (1943).

General repute in community. - Marriage is matter of public interest, and general repute in community is admissible upon such an issue. Murray v. Clayton, 151 Ga. App. 720 , 261 S.E.2d 455 (1979).

Party asserting marriage has burden of proving end of illicit relationship. - When the relationship between the parties begins as an illicit arrangement, the burden is on the party asserting the validity of the marriage to show that the illicit relationship ended and that the parties did actually enter a marriage contract. Brown v. Brown, 234 Ga. 300 , 215 S.E.2d 671 (1975); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270 , 259 S.E.2d 675 (1979).

Party seeking to prove prior marriage founded upon cohabitation must show every element necessary to validity of such a prior marriage by proving not only that the prior marriage was consummated in accordance with the rules of law, but that such alleged former spouse was single and possessing every other qualification for a valid marriage. Addison v. Addison, 186 Ga. 155 , 197 S.E. 232 (1938).

Inconsistent acts do not overcome direct proof of common-law marriage. - When a common-law marriage has been satisfactorily proved, inconsistent acts and declarations of the parties subsequent thereto, although entitled to consideration, do not overcome the direct proof of the existence of the marriage. Evans v. Marbut, 140 Ga. App. 329 , 231 S.E.2d 94 (1976), cert. dismissed, 238 Ga. 583 , 234 S.E.2d 506 (1977).

Presumption as valid contract, arising from cohabitation and repute, yields to proof of subsequent ceremonial marriage of one of the parties. Addison v. Addison, 186 Ga. 155 , 197 S.E. 232 (1938); Carter v. Graves, 206 Ga. 234 , 56 S.E.2d 917 (1949).

Ceremonial marriage will not prevail over properly proven previous common-law marriage. Carter v. Graves, 206 Ga. 234 , 56 S.E.2d 917 (1949), later appeal, 207 Ga. 308 , 61 S.E.2d 282 (1950).

Rules of estoppel between parties cannot be invoked to determine validity of marriage. Bell v. Bell, 206 Ga. 194 , 56 S.E.2d 289 (1949).

Georgia does not allow the validity of a marriage to be challenged through estoppel. Hayes v. Schweiker, 575 F. Supp. 402 (N.D. Ga.), aff'd, 723 F.2d 918 (11th Cir. 1983), cert. denied, 466 U.S. 953, 104 S. Ct. 2160 , 80 L. Ed. 2 d 545 (1984).

Evidence supported jury's determination that common-law marriage existed. See Ridley v. Grandison, 260 Ga. 6 , 389 S.E.2d 746 (1990).

Conflicting evidence allowed the jury to find evidence of a common-law marriage between a decedent and a widower, which began before January 1, 1997, when common-law marriages were no longer recognized in Georgia, and continued to the date of the decedent's death, because they were able to contract as the decedent was a widow and the widower was divorced, they had a sexual relationship and shared a bedroom, they agreed to be married and the decedent accepted a ring from the widower which she wore daily until her last hospitalization, the widower referred to the decedent as his wife, they opened joint financial accounts, to which they both contributed monies, and shared household expenses, they opened separate individual retirement accounts, designating each other as sole beneficiaries, they incurred debt together, they bought land which was titled in both of their names, he signed consents for her last hospitalization, and they introduced each other to others as husband or wife. In re Estate of Love, 274 Ga. App. 316 , 618 S.E.2d 97 (2005).

When a couple had not agreed to live together as man and wife and had not held themselves out to the world as husband and wife, but had, on the contrary, frequently referred to themselves as engaged to be married, there was no common-law marriage. In re Estate of Wilson, 236 Ga. App. 496 , 512 S.E.2d 383 (1999).

Common-law Marriage

Common-law marriage is valid marriage in this state. Steed v. State, 80 Ga. App. 360 , 56 S.E.2d 171 (1949).

There is no common-law marriage de futuro cum copula in this state. Peacock v. Peacock, 196 Ga. 441 , 26 S.E.2d 608 (1943).

Elements of common-law marriage. - By the common law and the law of this state a mutual agreement to be husband and wife, by parties able to contract, followed by cohabitation, is recognized as a valid marriage. Askew v. Dupree, 30 Ga. 173 (1860); Dillon v. Dillon, 60 Ga. 204 (1878); Wynne v. State, 17 Ga. App. 263 , 86 S.E. 823 (1915); Stewart v. Price, 89 Ga. App. 62 , 81 S.E.2d 28 (1954).

To establish a common-law marriage in Georgia three requisites must be met. There must be: (1) parties able to contract; (2) an actual contract of marriage; and (3) consummation by cohabitation in Georgia. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

In order for a common-law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement. Georgia Osteopathic Hosp. v. O'Neal, 198 Ga. App. 770 , 403 S.E.2d 235 (1991).

Georgia law allows proof of common-law marriage by proof of cohabitation in conjunction with the husband and wife holding themselves out to the world as married. Metropolitan Life Ins. Co. v. Lucas, 761 F. Supp. 130 (M.D. Ga. 1991).

In a will contest, in which it was disputed whether the decedent was married by common law to her purported widower, a son's requested jury charge that a common-law marriage could not be partial or periodic was adequately covered in the trial court's charge on the elements of a common-law marriage under O.C.G.A. § 19-3-1 . In re Estate of Love, 274 Ga. App. 316 , 618 S.E.2d 97 (2005).

In order for a common law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement, and all three of these elements as set forth in O.C.G.A. § 19-3-1 must be met simultaneously. In re Estate of Love, 274 Ga. App. 316 , 618 S.E.2d 97 (2005).

Evidence tending to show the existence of a common law marriage may include such circumstances as the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of marriage. In re Estate of Love, 274 Ga. App. 316 , 618 S.E.2d 97 (2005).

Requirements of common-law marriage. - Three requirements of law must be met, all at one time, in order for there to be a common-law marriage. Brown v. Brown, 234 Ga. 300 , 215 S.E.2d 671 (1975); Evans v. Marbut, 140 Ga. App. 329 , 231 S.E.2d 94 (1976), cert. dismissed, 238 Ga. 583 , 234 S.E.2d 506 (1977); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270 , 259 S.E.2d 675 (1979).

O.C.G.A. § 19-3-1 establishes the three essential elements of a marriage in this state, all of which must be met during one period of time in order to prove a common law marriage. Edwards v. Edwards, 188 Ga. App. 821 , 374 S.E.2d 791 (1988).

Essential elements of a marriage are: (1) parties able to contract; (2) an actual contract; and (3) consummation according to law. These requirements must be satisfied simultaneously in order for a marriage to exist. Brown v. Carr, 198 Ga. App. 567 , 402 S.E.2d 296 (1991).

No common law marriage. - There was evidence supporting the finding that an administrator and a decedent were not common-law spouses. The couple separated numerous times, and the administrator had a boyfriend during one separation, filed tax returns as a single person, and did not list the decedent as the father on her daughter's birth certificate or give her his last name; furthermore, the administrator was the only person who testified in support of her common-law marriage, while the remaining two witnesses testified that neither the administrator nor the decedent held themselves out as husband and wife. In re Estate of Smith, 298 Ga. App. 201 , 679 S.E.2d 760 (2009).

Cohabitation

It is not sufficient to agree to present cohabitation and future regular marriage when more convenient, or when a wife dies, or when a ceremony can be performed. Peacock v. Peacock, 196 Ga. 441 , 26 S.E.2d 608 (1943).

Fact of cohabitation is essential in establishing common-law marriage in this state. Drewry v. State, 208 Ga. 239 , 65 S.E.2d 916 (1951), adopting dissenting opinion in Lefkoff v. Sicro, 189 Ga. 554 , 6 S.E.2d 687 (1939); Fireman's Fund Ins. Co. v. Smith, 151 Ga. App. 270 , 259 S.E.2d 675 (1979).

Agreement of marriage may be inferred from cohabitation and reputation unless there is other evidence indicating that such an agreement was not present. In order for a relationship based upon repute and cohabitation to obtain the status of marriage at least one of the parties must have believed in good faith that their marital agreement made them husband and wife. Kersey v. Gardner, 264 F. Supp. 887 (M.D. Ga. 1967).

Marriage may be inferred from proof of cohabitation, and that the parties held themselves out to the world as husband and wife. Such proof may be made by general repute among neighbors and others in a position to know the facts. Simeonides v. Zervis, 127 Ga. App. 506 , 194 S.E.2d 324 (1972).

Informal agreement not consummated by cohabitation is insufficient to establish common-law marriage. Tabor v. Fowler, 119 Ga. App. 259 , 167 S.E.2d 220 (1969).

Common-law marriage not negated by plans for marriage ceremony. - When the probate court was clearly authorized to determine from the evidence both that decedent and a woman had intended to live together as husband and wife subsequent to decedent's divorce from his first wife and that they actually had done so, the fact that they planned at some point in the future to secure a license and formalize their union with a ceremonial marriage did not negate the existence of a common-law marriage. Brown v. Carr, 198 Ga. App. 567 , 402 S.E.2d 296 (1991).

Woman's statement that she and decedent had "talked some about getting married but never did it" did not necessarily negate the existence of a common-law marriage relationship for a couple may enter into such a relationship yet nevertheless discuss and plan a marriage ceremony for the purpose of formalizing the arrangement. Georgia Osteopathic Hosp. v. O'Neal, 198 Ga. App. 770 , 403 S.E.2d 235 (1991).

Presumption when only proof in case is of continuous cohabitation. - When only proof in case is of continuous cohabitation, presumption is that it was lawful. When to this proof is added some affirmative proof of holding themselves out as man and wife, it adds so much to the force of presumption, and length of time strengthens the probative force of the presumption. This presumption of marriage from connubial habit is one of the strongest known to the law, and is to be repelled only by clear evidence. Simeonides v. Zervis, 127 Ga. App. 506 , 194 S.E.2d 324 (1972).

Insufficient evidence of common law marriage. - Absence of proof of entry into a present marriage contract resulted in the affirmation of the trial court's finding that the tenant was not the common law spouse of the decedent. In re Estate of Legrand, 259 Ga. App. 67 , 576 S.E.2d 54 (2002).

Same Sex Marriage

Lesbian marriages. - Attorney General, that is, the State of Georgia's interest, as an employer in promoting the efficiency of the Attorney General's important public service outweighed the plaintiff's personal associational interests in a lesbian marriage. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997), cert. denied, 522 U.S. 1049, 118 S. Ct. 693 , 139 L. Ed. 2 d 638 (1998).

General Consideration

Law is more regardful of nuptial contracts, and persons incapable of contracting generally may contract marriage. Unlawful marriages are not void unless so declared. Park v. Barron, 20 Ga. 702 (1856).

Presumption of capacity to contract marriage. - There is presumption that parties had capacity to contract marriage and this presumption prevails until overcome by proof. Fanning v. State, 46 Ga. App. 716 , 169 S.E. 60 (1933).

Requirements of section applicable to common-law marriage. - In order to be able to contract a valid common-law marriage, one must be able to meet the requirements of this statute. Hiter v. Shelp, 129 Ga. App. 401 , 199 S.E.2d 832 (1973).

When the existence of a common-law marriage was raised as a defense to kidnapping, even though the trial court erred in failing to charge that defendant's burden to prove the marriage was only to a preponderance of the evidence, the error was harmless since no evidence was cited to prove two of the elements as required by O.C.G.A. § 19-3-2 . Dixon v. State, 217 Ga. App. 267 , 456 S.E.2d 758 (1995).

Cited in Gibbs v. Brown, 68 Ga. 803 (1882); Crapps v. Smith, 9 Ga. App. 400 , 71 S.E. 501 (1911); Morgan v. Morgan, 148 Ga. 625 , 97 S.E. 675 (1918); Bentley v. Bentley, 149 Ga. 707 , 102 S.E. 21 (1920); Finney v. State, 51 Ga. App. 545 , 181 S.E. 144 (1935); Irby v. State, 57 Ga. App. 717 , 196 S.E. 101 (1938); Smith v. State, 66 Ga. App. 669 , 19 S.E.2d 168 (1942); Indian Springs Swimming Pool Corp. v. Maddox, 70 Ga. App. 842 , 29 S.E.2d 724 (1944); Christopher v. Christopher, 198 Ga. 361 , 31 S.E.2d 818 (1944); Hickman v. State, 199 Ga. 805 , 35 S.E.2d 461 (1945); Gearllach v. Odom, 200 Ga. 350 , 37 S.E.2d 184 (1946); Pritchett v. Ellis, 201 Ga. 809 , 41 S.E.2d 402 (1947); Goza v. State, 91 Ga. App. 842 , 87 S.E.2d 232 (1955); Hayes v. Hay, 92 Ga. App. 88 , 88 S.E.2d 306 (1955); Liberty Mut. Ins. Co. v. Ellis, 99 Ga. App. 486 , 109 S.E.2d 70 (1959); Hosley v. Ridley, 101 Ga. App. 752 , 112 S.E.2d 304 (1959); Ganns v. Worrell, 216 Ga. 512 , 117 S.E.2d 533 (1960); Bryant v. Bryant, 216 Ga. 762 , 119 S.E.2d 573 (1961); Toole v. Gallion, 221 Ga. 494 , 144 S.E.2d 360 (1965); Murry v. Lett, 222 Ga. 67 , 148 S.E.2d 412 (1966); Wittke v. Horne's Enters., Inc., 118 Ga. App. 211 , 162 S.E.2d 898 (1968); Smith v. Smith, 230 Ga. 616 , 198 S.E.2d 307 (1973); Hiter v. Shelp, 129 Ga. App. 401 , 199 S.E.2d 832 (1973); Riddle v. Riddle, 240 Ga. 515 , 241 S.E.2d 214 (1978); Thompson v. Brown, 254 Ga. 191 , 326 S.E.2d 733 (1985); Dismuke v. C & S Trust Co., 261 Ga. 525 , 407 S.E.2d 739 (1991); Cornelius v. State, 213 Ga. App. 766 , 445 S.E.2d 800 (1994); Singleton v. Wilburn, 262 Ga. App. 52 , 584 S.E.2d 659 (2003); Singleton v. Wilburn, 262 Ga. App. 52 , 584 S.E.2d 659 (2003).

Sound Mind

Sound mind essential requirement. - It is essential to the validity of a marriage in this state that the parties should be of sound mind and marriages of persons unable to contract are void. Bell v. Bennett, 73 Ga. 784 (1884). For other cases, see 9 Enc. Dig. 189.

Age

Ratification of marriage contract upon majority. - Although this statute prescribed the consentable age of parties, if a party below the age marries, but after the party reaches the consentable age the party affirms the marriage, and there is cohabitation, the marriage will thereafter be valid and binding. Americus Gas & Elec. Co. v. Coleman, 16 Ga. App. 17 , 84 S.E. 493 (1915).

Marriage of a boy under 17 (now 16) years of age, although declared by former Code 1933, § 53-104 (see now O.C.G.A. § 19-3-5 ) to be void, may nevertheless be ratified and confirmed by continuing, after arriving at the age of 17 (now 16), to cohabit with his wife as such. Jones v. Jones, 200 Ga. 571 , 37 S.E.2d 711 (1946).

If a girl contracts a marriage which is invalid because she is under the age of consent, but, on arriving at this age, ratifies the marriage by continued cohabitation, the marriage is thereafter valid. Such marriages partake more of the nature of voidable than void marriages. They are imperfect marriages which the party may affirm or disaffirm after reaching the age of consent. The burden of proof is upon the person seeking to prove that the marriage was in fact ratified by continued cohabitation after the removal of the disability. Mims v. Hardware Mut. Cas. Co., 82 Ga. App. 210 , 60 S.E.2d 501 (1950).

Underage party who contracts invalid marriage not subject to alimony claim. - When at the time of purported marriage, and at the time of an order granting alimony on the application of the wife for the support of their child, the partner was less than 17 years of age (now 16 years of age) the grant of such judgment against him was contrary to law, since there was no valid marriage to support it, and whether he could in some way be held liable for support of the child, he could not be subject to such liability through a claim of alimony. Eskew v. Eskew, 199 Ga. 513 , 34 S.E.2d 697 (1945) (decided under former version of section specifying minimum age of 17 for marriage by a male).

Alimony permissible if minor subsequently ratifies marriage. - Marriage of a boy under the age specified in law, though not absolutely void, being voidable only and subject to ratification, must yet be treated as void, so far as alimony is concerned, unless and until it is so ratified by him after reaching such age. Eskew v. Eskew, 199 Ga. 513 , 34 S.E.2d 697 (1945).

Previous Undisclosed Marriage

Party to previous undissolved marriage is unable to contract marriage. Connor v. Rainwater, 200 Ga. 866 , 38 S.E.2d 805 (1946).

Previous undissolved marriage of one of the parties to a marriage ceremony renders such party incapable of making a marriage contract. Pritchett v. Ellis, 201 Ga. 809 , 41 S.E.2d 402 (1947).

One who has a prior undissolved marriage does not have legal capacity to contract marriage. Kicklighter v. Kicklighter, 217 Ga. 54 , 121 S.E.2d 122 (1961); Murry v. Lett, 222 Ga. 67 , 148 S.E.2d 412 (1966).

Previous undissolved marriage renders attempted second marriage void. Graves v. Carter, 207 Ga. 308 , 61 S.E.2d 282 (1950); Lovett v. Zeigler, 224 Ga. 144 , 160 S.E.2d 360 (1968).

When a woman having a living husband married another man, or a husband having a living wife and married another woman, the second marriage is void. Murchison v. Green, 128 Ga. 339 , 57 S.E. 709 (1907); Curlew v. Jones, 146 Ga. 367 , 91 S.E. 115 (1917).

Marriage ceremony accompanied by cohabitation between a man and a woman, when one of them has a living wife or husband, is an absolute nullity, and may be so treated by the parties. Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483 , 150 S.E. 110 (1929).

Bigamous marriage, being void, is a nullity, and no decree is necessary to avoid the marriage. The marriage may be treated as an absolute nullity by the parties to such a ceremony and by all the world. Smith v. State, 66 Ga. App. 669 , 19 S.E.2d 168 (1942).

Attempted bigamous marriage is utterly void, and may be disregarded without ever being decreed void by a judgment of a court. Gearllach v. Odom, 200 Ga. 350 , 37 S.E.2d 184 (1946).

Knowledge of former marriage by innocent party to second marriage is not requisite to render void the second marriage. Clark v. Cassidy, 62 Ga. 407 (1879); Belle Isle v. Belle Isle, 47 Ga. App. 168 , 170 S.E. 211 (1933).

When marriage has been proved, relation is presumed to exist until evidence of marriage's dissolution by divorce or death, and the party asserting the dissolution must prove the dissolution. Clark v. Cassidy, 62 Ga. 407 (1879); Belle Isle v. Belle Isle, 47 Ga. App. 168 , 170 S.E. 211 (1933).

Subsequent marriage does not create presumption of dissolution of first marriage. Uddyback v. Johnson, 149 Ga. App. 769 , 256 S.E.2d 29 (1979).

When there is proof that one party has living spouse, there is no presumption that divorce was granted dissolving the former marriage. Liberty Mut. Ins. Co. v. Ellis, 99 Ga. App. 486 , 109 S.E.2d 70 (1959).

Presumption of validity of second marriage is strong, and burden is upon one attacking said marriage to overcome the presumption by clear, distinct, positive, and satisfactory proof. Jones v. Transamerica Ins. Co., 154 Ga. App. 408 , 268 S.E.2d 444 (1980), overruled on other grounds, Glover v. Glover, 172 Ga. App. 278 , 322 S.E.2d 755 (1984).

Presumption arose that second marriage was valid until evidence was adduced that first spouse is living, and only then does the law place the burden on the party contending that the second marriage was valid to go forward with the evidence and show that the first marriage was dissolved by divorce. American Mut. Liab. Ins. Co. v. Copeland, 113 Ga. App. 707 , 149 S.E.2d 402 (1966); Patrick v. Simon, 237 Ga. 742 , 229 S.E.2d 746 (1976); Kelly v. Kelly, 144 Ga. App. 43 , 240 S.E.2d 312 (1977); Glover v. Glover, 172 Ga. App. 278 , 322 S.E.2d 755 (1984).

When establishing dissolution of former marriage required. - It is only when there is evidence of a living spouse that rule requiring affirmative establishment of dissolution of previous marriage comes into play. Zurich Ins. Co. v. Craft, 103 Ga. App. 889 , 120 S.E.2d 922 (1961).

Burden of proof, once former marriage is shown, is on party asserting dissolution. Good faith or ignorance of the parties to the second marriage as to the true facts does not change the rule. New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677 , 112 S.E.2d 273 (1959), criticized, Zurich Ins. Co. v. Craft, 103 Ga. App. 889 , 120 S.E.2d 922 (1961).

Third party may legally marry party to bigamous marriage not otherwise incapacitated. - When a single man laboring under no disability married a woman who had theretofore knowingly been a party to a bigamous marriage, but was not otherwise incapacitated, his marriage to her was legal and, so long as it was not dissolved, constituted an impediment against another marriage by him. Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483 , 150 S.E. 110 (1929).

To void bigamous marriage, a party may later marry when no other impediment exists. - The fact that a woman otherwise capable of contracting marriage entered into a marriage ceremony with a man who, to her knowledge, had a living wife from whom he was not divorced, would not render her incapable of later contracting marriage with another man, and this she could do without any judgment or decree annulling the previous marriage. Atlantic Bitulithic Co. v. Maxwell, 40 Ga. App. 483 , 150 S.E. 110 (1929).

Common-law wife could not invoke marital privilege against testimony when previous existing marriage shown. - When witness testified that prior to the time she lived with the defendant as his common-law wife, she was married to another person who was still living and from whom she had not been divorced, the witness was not entitled to the marital privilege of refusing to testify as the previous marriage was not presumed to have been dissolved. Gates v. State, 120 Ga. App. 518 , 171 S.E.2d 375 (1969).

Bigamous marriage may become lawful on death of first spouse. - If a man who had a living wife undivorced entered into a ceremonial marriage with another woman who was not shown to have known of the former marriage, and they cohabited as husband and wife from the time of such marriage and continued to do so after the death of the first wife, they will be considered thereafter as lawfully married. Hamilton v. Bell, 161 Ga. 739 , 132 S.E. 83 (1926).

Validity of marriage challenged through estoppel. - Georgia does not allow validity of a marriage to be challenged through estoppel. Hayes v. Schweiker, 575 F. Supp. 402 (N.D. Ga.), aff'd, 723 F.2d 918 (11th Cir. 1983), cert. denied, 466 U.S. 953, 104 S. Ct. 2160 , 80 L. Ed. 2 d 545 (1984).

Setting aside divorce decree when marriage void from inception. - Trial court erred by denying an ex-husband's motion to set aside a divorce decree with the ex-wife because the marriage was void from the marriage's inception due to the ex-wife having a living spouse from an undissolved marriage at the time and there was no issue of the protection of a child to prevent the decree from being set aside. Wright v. Hall, 292 Ga. 457 , 738 S.E.2d 594 (2013).

General Consideration

Section does not change common-law doctrine of interspousal immunity. - O.C.G.A. § 19-3-8 does not purport to change common law regarding personal torts committed by one spouse against the other, and the law, with respect to those matters, is still the same as it was under common law, that is, that marriage extinguishes antenuptial rights of action between husband and wife, and after marriage the wife cannot maintain an action against her husband based on tortious injury to her person, though committed prior to coverture. Robeson v. International Indem. Co., 248 Ga. 306 , 282 S.E.2d 896 (1981).

Common-law interspousal immunity doctrine applies to husbands as well as wives. Robeson v. International Indem. Co., 248 Ga. 306 , 282 S.E.2d 896 (1981).

Scope of doctrine. - Doctrine of interspousal tort immunity bars actions between spouses in respect to personal torts committed by one spouse against the other, except when the traditional policy reasons for applying interspousal tort immunity are absent, i.e., when there is no marital harmony to be preserved and when there exists no possibility of collusion between the spouses. Shoemake v. Shoemake, 200 Ga. App. 182 , 407 S.E.2d 134 (1991).

Application of interspousal immunity doctrine to wrongful death actions violates constitutional guarantee of equal protection because the doctrine arbitrarily distinguishes between classes of wrongful death claimants. Jones v. Jones, 259 Ga. 49 , 376 S.E.2d 674 (1989).

Doctrine of interspousal immunity is not unconstitutional as a matter of due process or equal protection. Robeson v. International Indem. Co., 248 Ga. 306 , 282 S.E.2d 896 (1981).

Common-law interspousal immunity doctrine bears reasonable relationship to promotion of domestic tranquility interest sought to be furthered by it. Robeson v. International Indem. Co., 248 Ga. 306 , 282 S.E.2d 896 (1981).

For discussion of reasons for preserving doctrine of interspousal immunity. - See Robeson v. International Indem. Co., 248 Ga. 306 , 282 S.E.2d 896 (1981).

Doctrine of interspousal tort immunity is inapplicable when there is, realistically speaking, no marital harmony to be protected by application of the rule nor any hint of collusion between the husband and wife or of intent to defraud an insurance company. Smith v. Rowell, 176 Ga. App. 100 , 335 S.E.2d 461 (1985).

When husband and wife had been separated for ten years, despite sporadic reconciliation attempts, and during which time the husband lived with another woman, the doctrine of interspousal tort immunity did not apply since there was no "marital harmony" to be protected. Harris v. Harris, 252 Ga. 387 , 313 S.E.2d 88 (1984).

Suit against husband's estate by wife's parents. - Interspousal immunity doctrine was not a bar to a wrongful death action brought against the estate of a deceased husband by the parents of the wife who died with her husband in the crash of a plane piloted by the husband. Trust Co. Bank v. Thornton, 186 Ga. App. 706 , 368 S.E.2d 158 (1988), cert. vacated, 258 Ga. 543 , 373 S.E.2d 512 (1988).

Requirement to apportion damages did not violate interspousal tort immunity doctrine. - Application of the apportionment of damages pursuant to O.C.G.A. § 51-12-33 did not violate the interspousal tort immunity doctrine, O.C.G.A. § 19-3-8 , because the trial court's holding that the jury should have been instructed to apportion the award of damages to a wife according to the jury's determination of the percentage of fault of her husband and a driver, if any, in no way requires the wife to file suit against her husband, but instead, precluded the wife from recovering from the driver that portion of her damages, if any, that a trier of fact concluded resulted from the negligence of her husband. Barnett v. Farmer, 308 Ga. App. 358 , 707 S.E.2d 570 (2011).

Application of doctrine. - Trial court erred in denying a husband's motion to dismiss, which was treated as a motion for summary judgment, and in failing to apply the interspousal tort immunity doctrine, as codified in O.C.G.A. § 19-3-8 , to a wife's claim for damages for a motorcycle accident, even though the wife's complaint against the husband contained a count for dissolution of the marriage. Gates v. Gates, 277 Ga. 175 , 587 S.E.2d 32 (2003).

Cited in Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369 , 170 S.E. 549 (1933); Breedlove v. Suttles, 302 U.S. 277, 58 S. Ct. 205 , 82 L. Ed. 252 (1937); Powell v. Powell, 196 Ga. 694 , 27 S.E. 393 (1943); Foster v. Withrow, 201 Ga. 260 , 39 S.E.2d 466 (1946); Bradley v. Tenneco Oil Co., 146 Ga. App. 161 , 245 S.E.2d 862 (1978); State Farm Mut. Auto. Ins. Co. v. Gazaway, 152 Ga. App. 716 , 263 S.E.2d 693 (1979); McTier v. State, 153 Ga. App. 551 , 265 S.E.2d 876 (1980); Chester v. State, 162 Ga. App. 10 , 290 S.E.2d 117 (1982).

General Consideration

Statute applied to transactions between husband and wife only, and does not extend to transactions between other near relatives. First Nat'l Bank v. Kelly, 190 Ga. 603 , 10 S.E.2d 66 (1940).

Statute was rule of evidence, and does not dispense with necessary elements in setting aside conveyance based on a valuable consideration. Baker v. Goddard, 205 Ga. 477 , 53 S.E.2d 754 (1949).

Purpose of section. - Recognizing that in transactions between husband and wife fraud might be so completely concealed that creditors could not expose the fraud, and in order that the public might not suffer from such concealment, the law imposes upon the husband and wife the duty of affirmatively establishing their good faith when creditors attack such transactions for fraud. Arrington v. Awbrey, 190 Ga. 193 , 8 S.E.2d 648 (1940); Powell v. Grimes, 223 Ga. 56 , 153 S.E.2d 434 (1967).

Jury was properly instructed that a debtor and the debtor's spouse had the burden to show that an allegedly fraudulent transfer of the debtor's interest in the debtor's home to the spouse was fair and free from fraud since O.C.G.A. § 19-3-10 , placing the burden in spousal transfers, was not impliedly repealed by enactment of the Uniform Fraudulent Transfer Act, O.C.G.A. § 18-2-70 et seq., which did not impose any burden of proof or conflict with any provision of the statute. Key Equip. Fin., Inc. v. Overend, 665 Fed. Appx. 801 (11th Cir. 2016)(Unpublished).

Cited in Strickland v. Jones, 131 Ga. 409 , 62 S.E. 322 (1908); Brand v. Bagwell, 133 Ga. 750 , 66 S.E. 935 (1910); Adams v. First Nat'l Bank, 147 Ga. 470 , 94 S.E. 568 (1917); Mitchell v. Mixon, 148 Ga. 596 , 97 S.E. 528 (1918); Gill v. Willingham, 156 Ga. 728 , 120 S.E. 108 (1923); Pope v. Bennett, 157 Ga. 357 , 121 S.E. 333 (1924); Jenkins v. Flournoy, 157 Ga. 618 , 122 S.E. 309 (1924); Durden v. Royster Guano Co., 158 Ga. 234 , 123 S.E. 603 (1924); Simmons v. Realty Inv. Co., 160 Ga. 99 , 127 S.E. 279 (1925); Davis v. Barrett, 163 Ga. 666 , 136 S.E. 904 (1927); James v. Hudson, 170 Ga. 321 , 152 S.E. 829 (1930); Cotton States Fertilizer Co. v. Childs, 179 Ga. 23 , 174 S.E. 708 (1934); Strobel v. Cormley, 50 Ga. App. 358 , 178 S.E. 192 (1935); Strickland v. Davis, 184 Ga. 76 , 190 S.E. 586 (1937); Tippins v. Lane, 184 Ga. 331 , 191 S.E. 134 (1937); Armour Fertilizer Works v. Maxwell, 186 Ga. 801 , 199 S.E. 120 (1938); Parker v. Harling, 189 Ga. 224 , 5 S.E.2d 755 (1939); Dwight v. Acme Lumber & Supply Co., 189 Ga. 473 , 6 S.E.2d 586 (1939); First Nat'l Bank v. Kelly, 190 Ga. 603 , 10 S.E.2d 66 (1940); Mattox v. West, 194 Ga. 310 , 21 S.E.2d 428 (1942); United States v. Phillips, 59 F. Supp. 1006 (S.D. Ga. 1945); Beazley v. Allen, 61 F. Supp. 929 (M.D. Ga. 1945); Lee v. Calhoun, 202 Ga. 297 , 43 S.E.2d 156 (1947); Beebe v. Smith, 76 Ga. App. 391 , 46 S.E.2d 212 (1948); Powers v. Powers, 213 Ga. 461 , 99 S.E.2d 818 (1957); Clark v. Ryals Ins. Agency, 99 Ga. App. 689 , 109 S.E.2d 643 (1959); Maloy v. Dixon, 127 Ga. App. 151 , 193 S.E.2d 19 (1972); Citizens & S. Nat'l Bank v. Parker, 145 Ga. App. 802 , 245 S.E.2d 48 (1978); Stokes v. McRae, 247 Ga. 658 , 278 S.E.2d 393 (1981); Johnson v. Sheridan, 179 Ga. App. 331 , 346 S.E.2d 109 (1986); Hadlock v. Anderson, 246 Ga. App. 291 , 540 S.E.2d 282 (2000); Broadfoot v. Hunerwadel (In re Dulock), 282 Bankr. 54 (Bankr. N.D. Ga. 2002); Bloom v. Camp, 336 Ga. App. 891 , 785 S.E.2d 573 (2016).

Transactions

Husband not liable for rent if wife specifically contracts to pay. - Husband is not liable for the rent simply because the rent constitutes a necessity of life for his family and because he is legally bound to support his family and provide them with the necessities of life if it appears under the allegations of the petition that the wife expressly contracted with the landlord to pay the rent for the dwelling abode of the family and that the wife entered into a written lease contract with the landlord to that effect. Butler v. Godley, 51 Ga. App. 784 , 181 S.E. 494 (1935).

Married woman bound as purchaser when entering into unambiguous written contract. - When a married woman enters into an unambiguous written contract whereby she becomes the owner of personalty, and agrees to pay a stipulated price therefor, she is bound by her obligation as purchaser, if the seller committed no fraud upon her nor knew of any committed by the husband. Gibson v. GMAC, 46 Ga. App. 201 , 167 S.E. 203 (1932).

When a married woman was sold an automobile under a written contract of purchase and sale, and there was no evidence whatever of any fraud practiced upon her by the vendor, and no evidence going to show that she was unable to read and comprehend the terms of the written agreement, and although the defendant may have purchased the automobile for the benefit of her husband, and may have immediately turned it over to him, she (the married woman) was bound by the unambiguous written contract, by which she became the purchaser of the property, and by which the consideration for the agreement on her part to pay the purchase price passed legally and morally to her. Gibson v. GMAC, 46 Ga. App. 201 , 167 S.E. 203 (1932).

Transactions between husband and wife involving transfer of property are to be scanned closely. Futrelle v. Karsman, 41 Ga. App. 765 , 154 S.E. 714 (1930).

Transactions between husband, wife, and near relatives, to the prejudice of creditors, are to be closely scanned and their bona fides clearly established. State Banking Co. v. Miller, 185 Ga. 653 , 196 S.E. 47 (1938).

Fraud

Conveyances may be fraudulent as to subsequent creditors, as well as existing creditors, if made with intent to defraud. Jones v. J.S.H. Co., 199 Ga. 755 , 35 S.E.2d 288 (1945).

Burden on spouses to show fair transaction when creditors allege fraud. - When a transaction between husband and wife is attacked for fraud by the creditors of either, the onus is on the husband and wife to show that the transaction was fair. Cotton States Fertilizer Co. v. Childs, 179 Ga. 23 , 174 S.E. 708 (1934); Edwards v. United Food Brokers, Inc., 195 Ga. 1 , 22 S.E.2d 812 (1942).

In a claim case where the wife sets up title to the property levied upon under a deed from her husband, and his creditor attacks the deed upon the ground that it is a fraudulent conveyance, this puts the burden upon the husband and wife to show that the transaction as a whole is free from fraud. Cotton States Fertilizer Co. v. Childs, 179 Ga. 23 , 174 S.E. 708 (1934); Merchants' & Citizens' Bank v. Clark, 180 Ga. 490 , 179 S.E. 103 (1935); Hodges v. Tattnall Bank, 185 Ga. 657 , 196 S.E. 421 (1938).

When the plaintiff was attacking a conveyance from the husband of claimant to her on the ground that it was voluntarily made to delay or defraud the creditor, since the transaction attacked was one between husband and wife, the onus was on them to show the transaction was fair. Citizens & S. Nat'l Bank v. Kontz, 185 Ga. 131 , 194 S.E. 536 (1937).

Whenever a transaction is between husband and wife, and the creditors of the husband attack the transaction for fraud, if the wife claims the property purchased or received from her husband, the onus is on her to make a fair showing about the whole transaction. State Banking Co. v. Miller, 185 Ga. 653 , 196 S.E. 47 (1938); Jones v. J.S.H. Co., 199 Ga. 755 , 35 S.E.2d 288 (1945).

Although the onus is on the husband and wife making the transaction to show that the transaction was fair, the plaintiff still retains the burden of putting forth evidence of the fraud. Bonner v. Smith, 247 Ga. App. 419 , 543 S.E.2d 457 (2000).

Husband and wife must show that transaction as a whole is free from fraud, and the bona fides must be clearly established. Mattox v. West, 194 Ga. 310 , 21 S.E.2d 428 (1942); Edwards v. United Food Brokers, Inc., 195 Ga. 1 , 22 S.E.2d 812 (1942).

When there was no proof to show any transaction between spouses, onus was upon creditor to show fraud or collusion if any. Rainey v. Eatonton Coop. Creamery, 69 Ga. App. 547 , 26 S.E.2d 297 (1943).

Conveyances for nominal consideration presumed fraudulent. - When there exist conveyances in exchange for love and affection or nominal consideration, the law forms a presumption that such transfers between husband and wife were fraudulent as against their creditors, because the burden of proving that a legitimate sale occurred must be shouldered by the debtor and his/her spouse. Loeb v. Dante, 1 Bankr. 547 (Bankr. N.D. Ga. 1979).

Failure to produce testimony is badge of fraud, when the bona fides of the transaction are in issue, and witnesses who ought to be able to explain the transaction are in reach. Cotton States Fertilizer Co. v. Childs, 179 Ga. 23 , 174 S.E. 708 (1934).

Transfer of property by alleged killer in unliquidated wrongful death claim. - Summary judgment was error when an issue of fact remained as to whether an unliquidated wrongful death claim at the time of a killer's property transfer without consideration to the killer's spouse rendered the killer insolvent and material issues remained as to fraud. Bryant v. Browning, 259 Ga. App. 467 , 576 S.E.2d 925 (2003).

Evidence

Mere introduction of conveyance from husband to wife would not shift burden from her to the creditor. State Banking Co. v. Miller, 185 Ga. 653 , 196 S.E. 47 (1938); Jones v. J.S.H. Co., 199 Ga. 755 , 35 S.E.2d 288 (1945).

Slight circumstances must be considered, and may be sufficient to establish existence of fraud. Arrington v. Awbrey, 190 Ga. 193 , 8 S.E.2d 648 (1940).

Charge to jury on wife's burden to show fairness. - Onus being on the claimant wife to show the fairness of the transaction and deed under which she claimed, as the court correctly charged, and she having assumed this burden and accepted the right to open and conclude the argument, it was not error, in the absence of request, for the court to fail to charge the jury further as to such burden, or as to any shift in the burden of introducing evidence. Tucker v. Talmadge, 186 Ga. 798 , 198 S.E. 726 (1938).

Wife's proof of good faith is jury question. - It is for jury to say whether wife has made proof of good faith required of her by law by simply denying knowledge of such business affairs of her husband. Mercantile Nat'l Bank v. Aldridge, 233 Ga. 318 , 210 S.E.2d 791 (1974).

General Consideration

Legislative intent. - Laws peculiar to divorce suits clearly indicate an intention upon the part of the lawmaking power to impede the facility for obtaining divorces; and such purpose can only be attributed to a zealous regard for the well-being of society. Haygood v. Haygood, 190 Ga. 445 , 9 S.E.2d 834 (1940).

Former Code 1933, § 30-101 (see now O.C.G.A. § 19-5-1 ) was not violative of provisions of former Ga. Const. 1976, Art. VI, Sec. IV, Para. VII (see now Ga. Const. 1983, Art. I, Sec. I, Para XI). Flournoy v. Flournoy, 228 Ga. 224 , 184 S.E.2d 822 (1971).

"Issuable defense" within meaning of law may be made by pre-trial order or other pleadings filed as provided by law. Trulove v. Trulove, 233 Ga. 896 , 213 S.E.2d 868 (1975).

Defending divorce action without filing answer cannot preclude "issuable defense." - Spouse's right in divorce action to defend without filing answer cannot preclude existence of "issuable defense" and thereby defeat the right to jury trial. Trulove v. Trulove, 233 Ga. 896 , 213 S.E.2d 868 (1975).

Divorce proceedings are governed by Civil Practice Act (see now O.C.G.A. T. 11, Ch. 9). Ivey v. Ivey, 233 Ga. 45 , 209 S.E.2d 590 (1974).

Divorce proceedings equitable in nature. - Proceedings for divorce and for alimony have always, under the practice of this state, been regarded as equitable. Early v. Early, 243 Ga. 125 , 252 S.E.2d 618 (1979).

Superior court judge presiding over a divorce case exercises all of the traditional powers of a chancellor in equity, except as otherwise provided by law. Allen v. Allen, 260 Ga. 777 , 400 S.E.2d 15 (1991).

Case involving the question of the enforceability of a settlement agreement was remanded to the trial court, pursuant to the rule holding that divorce proceedings are equitable in nature. Allen v. Allen, 260 Ga. 777 , 400 S.E.2d 15 (1991).

City courts lack jurisdiction to entertain suit for alimony. - Because exclusive jurisdiction of divorce and/or alimony questions is vested in superior courts, city courts are without jurisdiction to entertain a suit for alimony in a case in which a judgment has previously been rendered in the superior court. Tyson v. Tyson, 176 Ga. 137 , 167 S.E. 172 (1932).

Cited in Gilbert v. Gilbert, 202 Ga. 752 , 44 S.E.2d 485 (1947); Huguley v. Huguley, 204 Ga. 692 , 51 S.E.2d 445 (1949); Allison v. Allison, 205 Ga. 233 , 53 S.E.2d 114 (1949); Stebbins v. Stebbins, 206 Ga. 529 , 57 S.E.2d 564 (1950); Gardner v. Gardner, 206 Ga. 669 , 58 S.E.2d 416 (1950); Champion v. Champion, 207 Ga. 431 , 61 S.E.2d 822 (1950); Thompson v. Thompson, 207 Ga. 376 , 61 S.E.2d 834 (1950); Harrison v. Harrison, 207 Ga. 393 , 61 S.E.2d 837 (1950); Robertson v. Robertson, 207 Ga. 686 , 63 S.E.2d 876 (1951); Whaley v. Whaley, 208 Ga. 323 , 66 S.E.2d 722 (1951); Crute v. Crute, 208 Ga. 724 , 69 S.E.2d 225 (1952); Lloyd v. Lloyd, 208 Ga. 694 , 69 S.E.2d 251 (1952); Neal v. Neal, 209 Ga. 199 , 71 S.E.2d 229 (1952); Hilburn v. Hilburn, 210 Ga. 497 , 81 S.E.2d 1 (1954); Bedingfield v. Bedingfield, 211 Ga. 310 , 85 S.E.2d 756 (1955); Lott v. Lott, 212 Ga. 672 , 94 S.E.2d 869 (1956); Bell v. Bell, 213 Ga. 176 , 97 S.E.2d 571 (1957); Lott v. Lott, 213 Ga. 559 , 100 S.E.2d 170 (1957); Perry v. Perry, 213 Ga. 847 , 102 S.E.2d 534 (1958); Moseley v. Moseley, 214 Ga. 137 , 103 S.E.2d 540 (1958); Dunn v. Dunn, 221 Ga. 368 , 144 S.E.2d 758 (1965); McLarin v. McLarin, 224 Ga. 675 , 163 S.E.2d 914 (1968); Smith v. Smith, 228 Ga. 311 , 185 S.E.2d 78 (1971); Hatcher v. Hatcher, 229 Ga. 249 , 190 S.E.2d 533 (1972); Worrell v. Worrell, 242 Ga. 44 , 247 S.E.2d 847 (1978); Gordon v. Gordon, 244 Ga. 21 , 257 S.E.2d 528 (1979); Osteen v. Osteen, 244 Ga. 445 , 260 S.E.2d 321 (1979); Carmichael v. Carmichael, 248 Ga. 216 , 282 S.E.2d 71 (1981); Hudson v. State, 248 Ga. 397 , 283 S.E.2d 271 (1981).

Jury Trial

When judge of superior court sits in divorce case without jury, the judge has plenary control of the judge's judgment during the term at which the judgment is rendered. Juneau v. Juneau, 98 Ga. App. 330 , 105 S.E.2d 913 (1958).

Ga. L. 1966, p. 609, § 39 (see now O.C.G.A. § 9-11-39 ) authorized the trial court to permit jury trial even if written demand was not timely filed under former Code 1933, § 30-101 (see now O.C.G.A. § 19-5-1 ). Bullock v. Bullock, 234 Ga. 253 , 215 S.E.2d 255 (1975).

Jury is authorized to find for divorce when evidence establishes ground upon which the action is brought. Brackett v. Brackett, 217 Ga. 84 , 121 S.E.2d 146 (1961).

Jury trial required upon proper demand. - When one spouse made a proper demand for a jury trial which was not otherwise waived, it was reversible error for the court to enter a final judgment based upon the findings of an auditor, without a trial by jury. Franklin v. Franklin, 267 Ga. 82 , 475 S.E.2d 890 (1996).

Parties waive their right to jury trial in a divorce case if the parties fail to make a written demand for a jury trial on or before the call of the case. Ivey v. Ivey, 264 Ga. 435 , 445 S.E.2d 258 (1994).

Waiver of jury trial. - Actions of a party who dismisses a petition for divorce and thereafter files a separation agreement with the court settling all issues as to alimony, property settlement, child custody, and child support must be construed as a waiver of jury trial as to all issues in the case. In these circumstances, the trial court has the power to grant the divorce without the intervention of a jury and adopt the settlement entered into between the parties. Slaughter v. Slaughter, 236 Ga. 353 , 223 S.E.2d 714 (1976).

When jury verdict construed as in favor of petitioner. - When both parties to a divorce action introduce evidence in support of their respective prayers for divorce, and the jury returns a verdict finding in favor of a total divorce between the parties, without stating whether the verdict is for the petitioner or the respondent, it will be construed to be for the petitioner. Carawan v. Carawan, 203 Ga. 325 , 46 S.E.2d 588 (1948).

Application

Absent fraud, client bound by decree as negotiated by attorney. - When one employs counsel to represent one in a divorce action and such counsel agrees with counsel for the opposite party to a decree which is entered by the court, such decree will, in the absence of a violation of express directions by the client to counsel, known to the adverse party or counsel, or fraud, accident, or mistake, be binding upon the client. Dixon v. Dixon, 204 Ga. 363 , 49 S.E.2d 818 (1948).

Adultery as defense. - Alleged act of adultery, committed after date of separation and action, if proven, would be good defense against the grant of either total divorce or permanent alimony. Rowell v. Rowell, 209 Ga. 572 , 74 S.E.2d 833 (1953).

Recriminatory charge of adultery committed by the plaintiff after the commencement of a divorce action is a valid defense and upon a proper application at any time before the final decree, if such application is made immediately after the discovery of the fact, the court should permit the defendant to put in a supplemental answer or file a plea for continuance for the purpose of setting up such matter as a new defense. Rowell v. Rowell, 209 Ga. 572 , 74 S.E.2d 833 (1953).

Action for divorce instituted by guardian of person adjudicated insane cannot be maintained in this state; the right to bring and prosecute such an action being strictly personal, and not within the authority conferred by law upon a guardian. Phillips v. Phillips, 203 Ga. 106 , 45 S.E.2d 621 (1947).

Allegations that an individual, before the individual was adjudged mentally incompetent, and at a time when the individual had mental capacity to show the nature of an action for divorce, expressed the individual's intention and desire to obtain a divorce from the defendant, that at the time of the filing of the action, and during a lucid interval, after such adjudication, the individual again expressed the same intention and desire, and that the suit was instituted pursuant to the individual's direction, desire, and will at the time of filing the suit, would nevertheless not show authority in the guardian to institute and maintain such action. Phillips v. Phillips, 203 Ga. 106 , 45 S.E.2d 621 (1947).

Intervention by third party in divorce action. - There is no provision of law which allows third party to intervene in divorce action. Girtman v. Girtman, 191 Ga. 173 , 11 S.E.2d 782 (1940).

Collateral attack of valid divorce judgment. - Judgment in divorce case not shown to be void could not be collaterally attacked in another case and different forum. Juneau v. Juneau, 98 Ga. App. 330 , 105 S.E.2d 913 (1958).

Action to set aside fraudulent divorce can be maintained following death of party if it appears that the divorce decree or the subsequent action to set it aside involved some property right in which the surviving spouse is beneficially interested and the status and rights of the parties are retroactively affected. United States Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102 , 143 S.E.2d 663 (1965).

Decree properly set aside as fraudulent. - Petition alleging that petitioner had no knowledge of the pendency of the divorce action against the petitioner, the petitioner not having been served with process of the suit, nor had the petitioner acknowledged service thereof, and that the defendant had concealed from petitioner and kept petitioner ignorant of the pending suit, was sufficient as grounds of fraud for setting aside the divorce decree. Robertson v. Robertson, 196 Ga. 517 , 26 S.E.2d 922 (1943).

Motion to set aside decree properly denied when unsupported. - When a judgment and decree sought to be set aside were rendered in one term, and the motion to set aside came at a subsequent term, was not based on any defect appearing on the face of the record or pleadings, and was not accompanied by any brief of the evidence adduced upon the trial which resulted in the judgment and decree, the trial judge did not err in dismissing the motion to set aside. Prewett v. Prewett, 215 Ga. 425 , 110 S.E.2d 638 (1959).

Unadjudicated claim for divorce is purely personal and abates upon death. Segars v. Brooks, 248 Ga. 427 , 284 S.E.2d 13 (1981).

Final judgment was prematurely entered at a temporary hearing in a divorce proceeding since 23 days remained during which defensive pleadings would have been required by law to be filed and both parties had filed timely demands for a jury trial. Henderson v. Henderson, 258 Ga. 205 , 367 S.E.2d 40 (1988).

General Consideration

Law was capable of definition and application. Dickson v. Dickson, 238 Ga. 672 , 235 S.E.2d 479 (1977).

Specified grounds required for dissolution of marriage. - Marriage relationship cannot be dissolved in this state except upon grounds specified in this statute. Christopher v. Christopher, 198 Ga. 361 , 31 S.E.2d 818 (1944).

When jury authorized to find for divorce. - Jury is authorized to find for divorce when evidence establishes grounds upon which the action is brought. Brackett v. Brackett, 217 Ga. 84 , 121 S.E.2d 146 (1961).

When action for divorce is not available remedy. - When marriage status never existed and complaint is not grounds for divorce, action for divorce is not available remedy to the petitioner. Gearllach v. Odom, 200 Ga. 350 , 37 S.E.2d 184 (1946).

Previous undissolved marriage of one party is not grounds for divorce. Gearllach v. Odom, 200 Ga. 350 , 37 S.E.2d 184 (1946); Pritchett v. Ellis, 201 Ga. 809 , 41 S.E.2d 402 (1947); Lovett v. Zeigler, 224 Ga. 144 , 160 S.E.2d 360 (1968).

Cited in Smith v. Smith, 167 Ga. 98 , 145 S.E. 63 (1928); Baker v. Baker, 168 Ga. 478 , 148 S.E. 151 (1929); Kendrick v. Kendrick, 173 Ga. 434 , 160 S.E. 502 (1931); Twilley v. Twilley, 195 Ga. 291 , 24 S.E.2d 41 (1943); Mackey v. Mackey, 198 Ga. 707 , 32 S.E.2d 764 (1945); Ragans v. Ragans, 200 Ga. 890 , 39 S.E.2d 162 (1946); Sorrow v. Sorrow, 203 Ga. 146 , 45 S.E.2d 413 (1947); Brant v. Brant, 209 Ga. 151 , 71 S.E.2d 209 (1952); Veazy v. Blair, 86 Ga. App. 721 , 72 S.E.2d 481 (1952); Hinkle v. Hinkle, 209 Ga. 554 , 74 S.E.2d 657 (1953); Anglin v. Anglin, 209 Ga. 823 , 76 S.E.2d 498 (1953); Stimpson v. Stimpson, 213 Ga. 235 , 98 S.E.2d 559 (1957); Morrison v. Morrison, 215 Ga. 143 , 109 S.E.2d 519 (1959); Shivers v. Shivers, 215 Ga. 536 , 111 S.E.2d 376 (1959); Phillips v. Phillips, 215 Ga. 606 , 112 S.E.2d 594 (1960); Walston v. Walston, 216 Ga. 577 , 118 S.E.2d 369 (1961); Mills v. Mills, 218 Ga. 686 , 130 S.E.2d 221 (1963); Tolbert v. Tolbert, 221 Ga. 159 , 143 S.E.2d 743 (1965); Davis v. Davis, 223 Ga. 657 , 157 S.E.2d 444 (1967); Poulos v. Poulos, 226 Ga. 375 , 174 S.E.2d 925 (1970); Harkness v. Harkness, 228 Ga. 184 , 184 S.E.2d 566 (1971); Funderburk v. Funderburk, 229 Ga. 457 , 192 S.E.2d 262 (1972); Southeastern Fid. Ins. Co. v. Fluellen, 128 Ga. App. 877 , 198 S.E.2d 407 (1973); Barden v. Barden, 230 Ga. 663 , 198 S.E.2d 869 (1973); Roberts v. Roberts, 231 Ga. 196 , 200 S.E.2d 731 (1973); Ivey v. Ivey, 233 Ga. 45 , 209 S.E.2d 590 (1974); Blois v. Blois, 234 Ga. 475 , 216 S.E.2d 281 (1975); Anders v. Anders, 238 Ga. 79 , 231 S.E.2d 64 (1976); Leachmon v. Leachmon, 239 Ga. 780 , 238 S.E.2d 863 (1977); Ford v. Ford, 243 Ga. 763 , 256 S.E.2d 446 (1979); Tobitt v. Tobitt, 249 Ga. 245 , 290 S.E.2d 49 (1982).

Adultery

Adultery during marriage is ground for divorce by the other spouse, of whatever gender. Hargrett v. Hargrett, 242 Ga. 725 , 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765 , 273 S.E.2d 169 (1980).

Act of illicit sexual intercourse committed prior to marriage is not ground of divorce in this state. Stanley v. Stanley, 115 Ga. 990 , 42 S.E. 374 (1902).

Adultery may involve homosexual relations. - Person commits adultery when he or she has sexual intercourse with a "person" other than his or her spouse. Therefore, both extramarital homosexual, as well as heterosexual, relations constitute adultery. Owens v. Owens, 247 Ga. 139 , 274 S.E.2d 484 (1981).

Petitioner not precluded from alleging adultery when discovered after separation. - When the husband sought divorce on ground of adultery, among other grounds, the fact that the petitioner did not know of the adultery until after the separation did not prevent the petitioner from seeking a divorce based on adultery after learning of the adultery. Hargrett v. Hargrett, 242 Ga. 725 , 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765 , 273 S.E.2d 169 (1980).

Evidence of adultery. - To be a viable ground for divorce, evidence of adultery must continue to be admissible. Hargrett v. Hargrett, 242 Ga. 725 , 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765 , 273 S.E.2d 169 (1980).

Adultery may be proved by circumstantial evidence, but such evidence must infer as a necessary conclusion that adultery was committed. But if such evidence is fairly susceptible of two interpretations, one consistent with innocence and the other with guilt, it is not sufficient to prove adultery. Johnson v. Johnson, 218 Ga. 28 , 126 S.E.2d 229 (1962).

Requirements for inferring adultery from circumstantial evidence. - There must be both opportunity and adulterous disposition for adultery to be inferred from circumstantial evidence. Johnson v. Johnson, 218 Ga. 28 , 126 S.E.2d 229 (1962).

Cruel Treatment

"Cruel treatment," was willful infliction of pain, bodily or mental, upon the complaining party such as reasonably justifies an apprehension of danger to life, limb, or health. Odom v. Odom, 36 Ga. 286 (1867), overruled on other grounds, Wise v. Wise, 156 Ga. 459 , 119 S.E. 410 (1923); Ring v. Ring, 118 Ga. 183 , 44 S.E. 861 (1903); Ford v. Ford, 146 Ga. 164 , 91 S.E. 42 (1916); Phinizy v. Phinizy, 154 Ga. 199 , 114 S.E. 185 (1922); Adams v. Adams, 195 Ga. 479 , 24 S.E.2d 683 (1943); Hilburn v. Hilburn, 210 Ga. 497 , 81 S.E.2d 1 (1954); Ewing v. Ewing, 211 Ga. 803 , 89 S.E.2d 180 (1955); Connor v. Connor, 212 Ga. 92 , 90 S.E.2d 581 (1955); Moody v. Moody, 224 Ga. 13 , 159 S.E.2d 394 (1968).

Cruel treatment, or cruelty in the broad and unrestricted sense in which it is used in the statute, is any act intended to torment, vex, or afflict, or which actually afflicts or torments without necessity; or any act of inhumanity, wrong, oppression, or injustice. Ross v. Ross, 169 Ga. 524 , 150 S.E. 822 (1929); Morris v. Morris, 202 Ga. 431 , 43 S.E.2d 639 (1947); Bell v. Bell, 213 Ga. 176 , 97 S.E.2d 571 (1957).

Acts of cruelty must be such as to render cohabitation unsafe, or are likely to be attended with injury to the person or to the health of the wife. It must be the intention of the offending party to injure - to wound. It must be a willful act the purpose of which is to hurt. Ewing v. Ewing, 211 Ga. 803 , 89 S.E.2d 180 (1955).

Cruel treatment justifying separation defined. - Cruel treatment which would justify a wife in leaving her husband and living in a state of separation from him, while he is willing to have her come back to his home and live with him, should have the same definition as the cruel treatment which would afford grounds for divorce. Mell v. Mell, 190 Ga. 508 , 9 S.E.2d 756 (1940); Mullikin v. Mullikin, 200 Ga. 638 , 38 S.E.2d 281 (1946); Brown v. Brown, 217 Ga. 671 , 124 S.E.2d 399 (1962).

Willfulness of cruel treatment is essential element which will authorize the grant of a divorce. Alford v. Alford, 189 Ga. 630 , 7 S.E.2d 278 (1940).

Intention to wound is necessary element of cruel treatment for which divorce will be granted. Connor v. Connor, 212 Ga. 92 , 90 S.E.2d 581 (1955); Brown v. Brown, 228 Ga. 330 , 185 S.E.2d 412 (1971).

Without element of willfullness, there can be no cruel treatment which will authorize the grant of a divorce upon that ground. Hilburn v. Hilburn, 210 Ga. 497 , 81 S.E.2d 1 (1954); Vaughan v. Vaughan, 223 Ga. 298 , 154 S.E.2d 592 (1967).

If the alleged acts of cruel treatment by the defendant toward the petitioner resulted from the defendant's emotionally unstable personality and not from a willful desire to wound the plaintiff, then the defendant was guilty of no cruel treatment which could authorize the grant of a divorce to the plaintiff on this ground. Connor v. Connor, 212 Ga. 92 , 90 S.E.2d 581 (1955).

While husband's allegations as to matters transpiring before the reconciliation of the parties asserted conduct unbecoming a wife, they did not amount to allegations of cruel treatment since there was shown no willful infliction of pain such as would justify an apprehension of danger to life or health. Womble v. Womble, 214 Ga. 438 , 105 S.E.2d 324 (1958).

Insane person cannot commit willful acts which amount to cruel treatment within the meaning of paragraph (10) of this statute. Hilburn v. Hilburn, 210 Ga. 497 , 81 S.E.2d 1 (1954).

Divorce on grounds of cruel treatment presupposes bona fide separation. Sutton v. Sutton, 224 Ga. 140 , 160 S.E.2d 385 (1968).

Separated spouses can commit cruel acts. - Fact that spouses live separated does not make it impossible for either to commit cruel acts which may be the basis for a divorce. Slaughter v. Slaughter, 190 Ga. 229 , 9 S.E.2d 70 (1940); Wiley v. Wiley, 231 Ga. 798 , 204 S.E.2d 170 (1974).

Separation can occur when one spouse moves into another room with intent and purpose of suspending conjugal rights. Blasingame v. Blasingame, 249 Ga. 791 , 294 S.E.2d 519 (1982).

Actual physical violence is not essential ingredient of cruel treatment as used in paragraph (10) of this statute, or as construed by the Supreme Court. Slaughter v. Slaughter, 190 Ga. 229 , 9 S.E.2d 70 (1940).

Mental anguish may amount to cruelty. - Mental anguish and wounded feelings, constantly aggravated by repeated insults and neglect, are as bad as actual bruises of the person, and that which produces the one is not more cruel than that which causes the other. Ross v. Ross, 169 Ga. 524 , 150 S.E. 822 (1929); Duncan v. Duncan, 183 Ga. 570 , 189 S.E. 18 (1936).

Commission of acts which outrage the feelings of modesty and decency, such as threatening to commit, or attempting to commit, adultery, or cursing, abusing, or using insulting and opprobrious language, when done between a husband and wife, whether by the husband to the wife, or by the wife to the husband, and in the knowledge or coming to the knowledge of both; these also, if persisted in and unatoned for, constitute cruel treatment. Ross v. Ross, 169 Ga. 524 , 150 S.E. 822 (1929).

Words must be intended to wound. - In absence of intention to wound, words do not constitute cruel treatment as contemplated by the law as a ground for divorce. Ewing v. Ewing, 211 Ga. 803 , 89 S.E.2d 180 (1955).

Acts intended to cause anguish. - Acts or conduct of the defendant which would not amount to cruel treatment when considered alone might be found by the jury to enter into an alleged calculated intent by the defendant of causing the petitioner great mental pain and anguish. Bell v. Bell, 213 Ga. 176 , 97 S.E.2d 571 (1957).

Requirement of reasonable apprehension of injury. - There is no requirement that plaintiff's health be actually injured, but only that there be reasonable apprehension of injury. Hardy v. Hardy, 221 Ga. 176 , 144 S.E.2d 172 (1965).

Minor acts of temper not cruelty. - Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to the cruelty against which the law can relieve. Ring v. Ring, 118 Ga. 183 , 44 S.E. 861 (1903); Hilburn v. Hilburn, 210 Ga. 497 , 81 S.E.2d 1 (1954); Ewing v. Ewing, 211 Ga. 803 , 89 S.E.2d 180 (1955).

Slight disagreements, and words inspired by transitory temper, were never intended by the statute as cause for setting aside a marriage contract. Brown v. Brown, 129 Ga. 246 , 58 S.E. 825 (1907).

Single act of personal violence. - As a general rule, single act of personal violence is not considered cruel treatment, but two or more such acts alone may furnish ground for divorce. Phinizy v. Phinizy, 154 Ga. 199 , 114 S.E. 185 (1922); Hilburn v. Hilburn, 210 Ga. 497 , 81 S.E.2d 1 (1954).

One act of cruelty, not of a violent or serious character, standing alone, is not a sufficient ground for a divorce. Brown v. Brown, 217 Ga. 671 , 124 S.E.2d 399 (1962); Hearn v. Hearn, 220 Ga. 577 , 140 S.E.2d 861 (1965).

When single act of cruelty may justify divorce. - Single act of cruelty may be so severe and atrocious as to justify divorce; and a single act of cruel and inhuman treatment, accompanied by circumstances indicating a probability of a repetition of similar conduct, will warrant a divorce. Phinizy v. Phinizy, 154 Ga. 199 , 114 S.E. 185 (1922).

"Nagging" may be cruel treatment. Alford v. Alford, 189 Ga. 630 , 7 S.E.2d 278 (1940).

Allegations of "fussing and nagging" are sufficient to state a cause of action for divorce based on cruel treatment. Swindle v. Swindle, 221 Ga. 760 , 147 S.E.2d 307 (1966).

Continuous course of ill conduct, such as nagging, injuriously affecting or endangering health of other spouse, might constitute cruel treatment as a ground of divorce, even though one incident in the course of conduct would not; and condoned acts in such a series of misconduct might be revived by the renewal and persistence of the conduct. Womble v. Womble, 214 Ga. 438 , 105 S.E.2d 324 (1958).

Acts by wife, including continuous nagging and fussing, which were alleged in the husband's petition for divorce are sufficient to state a cause of action for divorce on the ground of cruel treatment. Cramer v. Cramer, 217 Ga. 414 , 122 S.E.2d 729 (1961).

Allegations of continuous fussing and nagging were sufficient to charge cruel treatment. Hirsch v. Hirsch, 217 Ga. 590 , 123 S.E.2d 915 (1962).

Constant nagging and false accusations can amount to cruel treatment. Hardy v. Hardy, 221 Ga. 176 , 144 S.E.2d 172 (1965).

Affectionate attentions to other persons. - Testimony of an unmarried woman as to attentions shown to her by the defendant, including a proposal of marriage, along with letters written by the defendant to the witness, containing terms of endearment and the like, is admissible to corroborate the testimony of the plaintiff as to cruel treatment. West v. West, 199 Ga. 378 , 34 S.E.2d 545 (1945).

Circulating slanderous reports of infidelity. - Circulation of reports of infidelity is such cruelty as would not only justify a separation, but would sustain an action for total divorce. Myrick v. Myrick, 67 Ga. 771 (1881); Glass v. Wynn, 76 Ga. 319 (1886)(This holding was said to be obiter in Ring v. Ring, 118 Ga. 183 , 44 S.E. 861 , 62 L.R.A. 878 (1903)).

Charge of adultery. - Charging a wife who was undergoing "the change of life," in her presence, with incestuous adultery with her brother, and these charges producing such mental pain as to cause her to become ill and to keep her in bed, at times for as long as two weeks, is sufficient to authorize a verdict for total divorce on the ground of cruel treatment. Miller v. Miller, 139 Ga. 282 , 77 S.E. 21 (1913).

Charge of unchastity. - It is not cruel treatment to charge a wife with unchastity if she has been guilty thereof. Fuller v. Fuller, 108 Ga. 256 , 33 S.E. 865 (1899).

Kicking one's wife, wounding and bruising her eye, head, and face, is cruel treatment sufficient to justify a divorce. Ozmore v. Ozmore, 41 Ga. 46 (1870).

Refusal to cohabit not cruel treatment. - Mere proof that a wife declined to cohabit with her husband will not authorize the grant of a divorce to him on the ground of cruel treatment. Pinnebad v. Pinnebad, 134 Ga. 496 , 68 S.E. 73 (1910).

Spouse's dishonesty to third person not cruelty. - Dishonesty on the part of a husband in his dealings with a third party, not connected with his domestic relations or his treatment of his wife or the grounds of cruelty alleged in her petition, should not be brought to the attention of the jury in the charge, as possibly illustrating the conduct of the parties in respect to each other, on the issue of whether or not the plaintiff cruelly treated his wife. Anglin v. Anglin, 145 Ga. 822 , 90 S.E. 73 (1916).

Taking legal action against spouse. - That a wife brings action against her husband and recovers judgment against him for a debt due to her, and that after separation she sues him for temporary alimony and obtains a judgment in such action, does not constitute cruel treatment or furnish to the husband any basis for a suit for divorce. Pinnebad v. Pinnebad, 134 Ga. 496 , 68 S.E. 73 (1910).

Alleging element of willfulness. - Allegations that the acts done or words spoken were done intentionally and for the purpose of injuring or wounding the petitioner were sufficient to allege the element of willfulness in the infliction of mental pain. Swindle v. Swindle, 221 Ga. 760 , 147 S.E.2d 307 (1966).

Alleged cruelty of a continuous nature. - When cruelty alleged is of a continuous nature, it is not necessary to set forth dates of the cruelties complained of. Cramer v. Cramer, 217 Ga. 414 , 122 S.E.2d 729 (1961).

Amending charges of cruelty. - Charges of cruelty in petition, as basis for divorce, may be amended by other charges of cruelty, and the plaintiff is not required to set forth with exactitude the dates of cruelty continuous in character. Duncan v. Duncan, 183 Ga. 570 , 189 S.E. 18 (1936).

Element of willfulness in jury charge. - In charging upon cruel treatment, court should not omit reference to element of willfulness in the offense against the complaining party, nor fail to instruct the jury that it must be such as reasonably justifies the apprehension of the injuries referred to. Skellie v. Skellie, 152 Ga. 707 , 111 S.E. 22 (1922).

Failure of judge to embrace element of willfulness in instruction requires grant of new trial, unless as a matter of law the court holds that the cruel treatment was willful. Alford v. Alford, 189 Ga. 630 , 7 S.E.2d 278 (1940).

Charge which embodied substantially definition of cruel treatment was not erroneous merely because not stated in the exact language of the Code. Bell v. Bell, 213 Ga. 176 , 97 S.E.2d 571 (1957).

Cruelty presents question of law. - What constitutes cruel treatment within the meaning of the law is a question of law for the court. Gholston v. Gholston, 31 Ga. 625 (1860); Brown v. Brown, 129 Ga. 246 , 58 S.E. 825 (1907).

Adverse verdict on one claim of cruelty not bar to second action. - Party who has once filed an action for divorce on the ground of cruel treatment, which resulted in a verdict and decree adverse to that party is not barred from thereafter filing a second petition on the same ground, but based on different acts, all of which were committed since the date of the former trial. Slaughter v. Slaughter, 190 Ga. 229 , 9 S.E.2d 70 (1940).

Desertion

Willful and continued desertion. - Willful and continued desertion by either party for a term of three years (now one) will authorize total divorce. Wilkinson v. Wilkinson, 159 Ga. 332 , 125 S.E. 856 (1924).

Petitioner's consent to desertion is not grounds for divorce. Word v. Word, 29 Ga. 281 (1859); Phinizy v. Phinizy, 154 Ga. 199 , 114 S.E. 185 (1922).

Affirmative natural elements of desertion are two: the cohabitation ended, and the offending party's intent to desert. The statute creates a third affirmative element, the lapse of a definite period of time. Reagan v. Reagan, 221 Ga. 656 , 146 S.E.2d 906 (1966).

There are three affirmative elements of desertion under law: the cohabitation ended, the offending party's intent to desert, and the lapse of a definite period of time. Cagle v. Cagle, 193 Ga. 34 , 17 S.E.2d 75 (1941).

Desertion must be without legal justification, and without a breach of the continuity which the statute renders essential. Cagle v. Cagle, 193 Ga. 34 , 17 S.E.2d 75 (1941); Reagan v. Reagan, 221 Ga. 656 , 146 S.E.2d 906 (1966).

Desertion must be "willful." - Desertion must not only have been continued for three years (now one) but must be "willful." Siniard v. Siniard, 145 Ga. 541 , 89 S.E. 517 (1916).

Law required voluntary separation of one married party from other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other. Cagle v. Cagle, 193 Ga. 34 , 17 S.E.2d 75 (1941); Reagan v. Reagan, 221 Ga. 656 , 146 S.E.2d 906 (1966).

Separation by mutual consent does not constitute desertion. Born v. Born, 213 Ga. 830 , 102 S.E.2d 170 (1958).

Voluntary separation is not desertion. - While desertion as a ground for divorce must have been "willful," a separation based merely on a voluntary agreement by both parties that they shall live apart, will not constitute the necessary element of willfulness as to a desertion by either party. Allen v. Allen, 194 Ga. 591 , 22 S.E.2d 136 (1942).

Denial of conjugal rights may amount to desertion. - Within the meaning of the law, it was desertion by the wife, though she continues to reside in the matrimonial domicile, for her willfully, persistently, and without justification to deny her husband all his conjugal rights with the intention of casting him off as a husband completely and forever. The continuance of this state of affairs for three years (now one) affords cause of divorce on the grounds of desertion. Whitfield v. Whitfield, 89 Ga. 471 , 15 S.E. 543 (1892); Pinnebad v. Pinnebad, 134 Ga. 496 , 68 S.E. 73 (1910); Duncan v. Duncan, 184 Ga. 602 , 192 S.E. 215 (1937).

Continued refusal after request for renewal of relations. - If the husband requests a resumption of the marital relation and a reconciliation in good faith, the refusal of the wife to resume cohabitation without justification or reasonable excuse manifests an intent to stay away and may constitute desertion on her part. Born v. Born, 213 Ga. 830 , 102 S.E.2d 170 (1958).

One-year requirement for willful desertion. - Evidence must show willful desertion for period of one year prior to filing of divorce action. Monroe v. Monroe, 218 Ga. 353 , 127 S.E.2d 899 (1962).

Evidence going to show that the desertion was not "willful", or that the petitioner was consenting, is admissible for the respondent. Word v. Word, 29 Ga. 281 (1859).

Parties as witnesses on desertion issue. - In an action for divorce by the husband against his wife alleging willful and continued desertion of the wife for a term of three years (now one), the husband is a competent witness; but he could not testify as to any facts derived by him from the confidential relation of husband and wife. Castello v. Castello, 41 Ga. 613 (1871).

Jury questions. - Under paragraph (7) of former Code 1933, § 30-102 (see now O.C.G.A. § 19-5-3 ), even if the jury believed that appellant-husband had offered to resume marital relations and that appellee had refused to do so, a verdict for appellee would be proper because questions of good faith on the part of the husband in making the offer and whether the refusal of the wife to resume marital relations was justified or not under the circumstances and the period of time when the desertion began, are all for the determination of the jury. Reagan v. Reagan, 221 Ga. 656 , 146 S.E.2d 906 (1966).

Marriage Irretrievably Broken

Constitutionality of divorce ground that marriage is irretrievably broken. - Grant of divorce on ground that marriage is irretrievably broken does not violate due process, equal protection, privileges and immunities, right to the courts, and right to trial by jury clauses of the state and federal constitutions. Dickson v. Dickson, 238 Ga. 672 , 235 S.E.2d 479 (1977).

Legislative intent in adding "no fault" ground of divorce was to manifest public policy of avoiding recriminations between married persons seeking a divorce. Anderson v. Anderson, 237 Ga. 886 , 230 S.E.2d 272 (1976).

Paragraph (13) amends public policy. - Public policy of the state to hinder facility in the procurement of divorces has been amended to the extent that paragraph (13) of this statute facilitated the procurement of divorces. Dickson v. Dickson, 238 Ga. 672 , 235 S.E.2d 479 (1977).

When paragraph (13) of this section conflicts with other sections. - To the extent that paragraph (13) of this statute was in irreconcilable conflict with other statutes, it must be held to amend those statutes by implication. Dickson v. Dickson, 238 Ga. 672 , 235 S.E.2d 479 (1977).

Irretrievably broken marriage is one where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation. McCoy v. McCoy, 236 Ga. 633 , 225 S.E.2d 682 (1976).

No allocation of fault in irretrievably broken marriage. - Under irretrievably broken ground, divorce is granted to both parties without allocation of fault. Anderson v. Anderson, 237 Ga. 886 , 230 S.E.2d 272 (1976).

Trial court is required to grant a divorce to both parties without fixing or placing fault on either party when a divorce is granted on the pleadings on irretrievably broken grounds. Herring v. Herring, 237 Ga. 771 , 229 S.E.2d 756 (1976).

Divorce granted on irretrievably broken grounds should be granted to the parties equally. Dickson v. Dickson, 238 Ga. 672 , 235 S.E.2d 479 (1977).

When traditional fault grounds alleged in addition to irretrievable break. - Even when traditional fault allegations are put forth by affidavit, or as evidence at a hearing, on a motion for summary judgment on the irretrievably broken ground, the primary finding is merely that the marriage is one where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation no matter what the reasons are that have caused that result. Anderson v. Anderson, 237 Ga. 886 , 230 S.E.2d 272 (1976).

No proof of fault required to show marriage is "irretrievably broken." - When parties do not specifically complain of the other's conduct, but merely state that their marital differences are insoluble and request a change of status, the only question is whether there are prospects for reconciliation. Anderson v. Anderson, 237 Ga. 886 , 230 S.E.2d 272 (1976).

No evidence requirement as to good faith effort. - There is no requirement that evidence show that parties made good faith effort to make successful marriage, nor that the marriage became irretrievably broken through no fault of either party. Whitmire v. Whitmire, 236 Ga. 153 , 223 S.E.2d 135 (1976).

Reconciliation and cohabitation of parties terminates action for divorce. This is a "no-fault" ground, and there can be no reconciliation on condition applicable to it, the breach of which condition would revive the action for divorce. Lindsay v. Lindsay, 241 Ga. 166 , 244 S.E.2d 8 (1978).

In a case in which a complaint for divorce is brought upon the ground that the marriage was irretrievably broken, subsequent reconciliation and cohabitation of the parties terminates the action for divorce. Joiner v. Joiner, 246 Ga. 77 , 268 S.E.2d 661 (1980).

Allegation of an irretrievably broken marriage is demonstrably false if the parties have resumed cohabitation or have reconciled for any period. Joiner v. Joiner, 246 Ga. 77 , 268 S.E.2d 661 (1980).

Reconciliation and cohabitation did not divest court of jurisdiction. - While cohabitation and reconciliation could be asserted as defenses to a pending divorce action, they did not divest a court of jurisdiction to enter a divorce decree; further, the court was authorized under O.C.G.A. § 19-5-3(13) to grant a divorce based on the evidence that the marriage was irretrievably broken. McCoy v. McCoy, 281 Ga. 604 , 642 S.E.2d 18 (2007).

Whether possibility for reconciliation exists is subjective. When the issue is contested by one of the parties to the divorce action, all relevant evidence is admissible to aid in this determination. Whitmire v. Whitmire, 236 Ga. 153 , 223 S.E.2d 135 (1976).

Party's failure to embark upon reconciliation in good faith. - If one party does not embark upon reconciliation in good faith, it cannot amount to evidence of hope for the marriage. Joiner v. Joiner, 246 Ga. 77 , 268 S.E.2d 661 (1980).

Mere fact that party maintains hope for reconciliation will not support finding that there are prospects for such. McCoy v. McCoy, 236 Ga. 633 , 225 S.E.2d 682 (1976).

No-fault divorce may be granted by summary judgment when the movant seeks a divorce on the irretrievably broken grounds and pierces the opposing party's pleadings, which deny that the marriage is irretrievably broken. Dickson v. Dickson, 238 Ga. 672 , 235 S.E.2d 479 (1977).

Summary judgment should be denied in a divorce proceeding when one of the parties moves for summary judgment on the issue of no-fault divorce and the other party opposes the motion by filing an affidavit expressing that party's opinion that the marriage is not irretrievably broken and there are genuine prospects for reconciliation. Whittington v. Whittington, 247 Ga. 79 , 274 S.E.2d 333 (1981).

Party estopped to complain of divorce judgment granted under paragraph (13). - When the court granted a divorce to the wife on the ground of the marriage being irretrievably broken she cannot later complain because one cannot complain of a judgment, order, or ruling that one's own procedure or conduct procured or aided in causing. Friedman v. Friedman, 233 Ga. 254 , 210 S.E.2d 754 (1974).

Other Grounds for Divorce

Insanity at time of marriage is grounds for divorce. Huguley v. Huguley, 204 Ga. 692 , 51 S.E.2d 445 (1949).

Natural impotence existing at time of marriage will void the marriage. Head v. Head, 2 Ga. 191 (1847).

No requirement as to petitioner's knowledge of impotency. - In naming impotency as a ground for divorce, merely specified "Impotency at the time of the marriage," without any qualification as to knowledge of the petitioner thereof. Lovelace v. Lovelace, 179 Ga. 822 , 177 S.E. 685 (1934).

Condonation of impotency is specific affirmative defense which must be alleged and proved by the party insisting upon it. Lovelace v. Lovelace, 179 Ga. 822 , 177 S.E. 685 (1934).

"Menace." - Any overt act of threatening character, short of actual assault, was "menace." Bryant v. Bryant, 192 Ga. 114 , 14 S.E.2d 725 (1941).

When false representation of paternity not grounds for divorce. - When woman prior to her marriage falsely and fraudulently represented to her prospective husband that he was the father of a child with which she was then pregnant, such representation would not be ground for the grant of a divorce based upon fraud, when it was shown that he married her to avoid a prosecution for seduction. Peacon v. Peacon, 197 Ga. 748 , 30 S.E.2d 640 (1944).

There were three essential ingredients in grounds for divorce based on conviction for a crime of moral turpitude: the commission of the offense involving moral turpitude, the conviction for the offense, and a sentence for a term of two years or longer in the penitentiary. Holloway v. Holloway, 126 Ga. 459 , 55 S.E. 191 (1906).

Right to divorce for criminal conviction is not affected by executive pardon granted after sentence has been imposed. Holloway v. Holloway, 126 Ga. 459 , 55 S.E. 191 (1906).

Applicability of condonation. - Condonation has no application between date of conviction and sentence and actual incarceration. Henderson v. Henderson, 235 Ga. 236 , 219 S.E.2d 160 (1975).

Voluntary manslaughter conviction. - Conviction of a married person of voluntary manslaughter followed by a sentence of imprisonment in the penitentiary for a term of two years or longer gives to the other party to the marriage a right to a divorce. Holloway v. Holloway, 126 Ga. 459 , 55 S.E. 191 (1906).

Not necessary to show continual intoxication. - In order to prove "habitual intoxication" on the part of the respondent, it is not essential to show that one was constantly and continuously drunk. Fuller v. Fuller, 108 Ga. 256 , 33 S.E. 865 (1899).

Proof of drunkenness on one occasion insufficient. - Testimony that the husband was "drunk" or "under the influence of liquor" on one occasion prior to the separation is wholly insufficient to sustain a divorce on the ground of habitual intoxication. Stimpson v. Stimpson, 213 Ga. 235 , 98 S.E.2d 559 (1957).

Provision on incurable mental illness strictly construed. - Since the settled law in this state is that, unless authorized by statute, insanity or other mental incapacity arising after marriage is not cause for divorce, any change in the settled law by statute making postnuptial insanity a ground for divorce should be strictly construed. Shelton v. Shelton, 209 Ga. 454 , 74 S.E.2d 5 (1953).

Law did not create any new right to support and maintenance after a divorce granted to the husband on the grounds of incurable insanity. Morris v. Bruce, 98 Ga. App. 821 , 107 S.E.2d 262 (1959).

General Consideration

It is not necessary for wife to counterclaim for divorce to avail herself of this defense under the provisions of this statute. Minielly v. Minielly, 234 Ga. 434 , 216 S.E.2d 271 (1975).

Reconciliation and cohabitatiion did not divest court of jurisdiction to grant divorce. - While cohabitation and reconciliation could be asserted as defenses to a pending divorce action, they did not divest a court of jurisdiction to enter a divorce decree; further, the court was authorized under O.C.G.A. § 19-5-3(13) to grant a divorce based on the evidence that the marriage was irretrievably broken. McCoy v. McCoy, 281 Ga. 604 , 642 S.E.2d 18 (2007).

Like Conduct

"Like conduct" construed. - When the ground of divorce of the husband is cruel treatment occurring prior to the separation, and the wife's charge in her answer is adultery, this is not such "like conduct" as is contemplated by law. Schwartz v. Schwartz, 222 Ga. 460 , 150 S.E.2d 809 (1966).

Cruel treatment and desertion are not "like conduct" within the meaning of the law so as to prohibit the grant of a divorce. Blois v. Blois, 234 Ga. 475 , 216 S.E.2d 281 (1975).

Cruel treatment by the wife prior to separation vis-a-vis adultery of the husband after separation and an invalid Mexican divorce are not "like conduct". Blois v. Blois, 234 Ga. 475 , 216 S.E.2d 281 (1975).

Cruel treatment of wife beating is "unlike" the cruel treatment of a wife's abusive and insulting language to her husband. Blois v. Blois, 234 Ga. 475 , 216 S.E.2d 281 (1975).

If both parties have been guilty of like misconduct, no divorce shall be granted. Cohen v. Cohen, 196 Ga. 562 , 27 S.E.2d 28 (1943).

Divorce denied to both parties who participate in quarreling. - When plaintiff's testimony showed conclusively that any fussing and quarreling was participated in by both, neither party could be granted a divorce under this testimony. Davis v. Davis, 223 Ga. 657 , 157 S.E.2d 444 (1967).

Condonation

"Condonation" is forgiveness, either expressed or implied, by a husband of his wife, or by a wife of her husband, for a breach of marital duty, with an implied condition that the offense shall not be repeated. Phinizy v. Phinizy, 154 Ga. 199 , 114 S.E. 185 (1922); Duncan v. Duncan, 184 Ga. 602 , 192 S.E. 215 (1937); Day v. Day, 210 Ga. 454 , 81 S.E.2d 6 (1954); Poulos v. Poulos, 226 Ga. 375 , 174 S.E.2d 925 (1970).

Condonation includes conditional forgiveness of all antecedent acts of cruelty, and such acts as may have been condoned will not be revived except by fresh acts of cruelty. Poulos v. Poulos, 226 Ga. 375 , 174 S.E.2d 925 (1970).

Sexual intercourse is not essential element of condonation, although it is conclusive evidence thereof. Phinizy v. Phinizy, 154 Ga. 199 , 114 S.E. 185 (1922); Duncan v. Duncan, 184 Ga. 602 , 192 S.E. 215 (1937); Dixon v. Dixon, 211 Ga. 869 , 89 S.E.2d 473 (1955); Poulos v. Poulos, 226 Ga. 375 , 174 S.E.2d 925 (1970).

Mere request to resume marital relations not condonation. - Fact that the plaintiff had a friendly interview with his wife, and requested her to return home and live with him, does not amount in law to a condonation. Johns v. Johns, 29 Ga. 718 (1859).

What constitutes condonation of cruel treatment. - If, after an act of cruelty done by the husband to the wife, she lives with him for many years, and has by him numerous children, and would probably still live with him but for the interference of a child, the act is condoned by her. Buckholts v. Buckholts, 24 Ga. 238 (1858).

If a husband is guilty of cruel treatment toward his wife, or of adultery, and with full knowledge thereof she condones the offense and cohabits with him, and he is not guilty of any further misconduct, she can not thereafter, at her mere will, desert him. Davis v. Davis, 134 Ga. 804 , 68 S.E. 594 (1910).

If there is no breach of condition after condonation, forgiveness stands complete and absolute. Condonation is not revocable at will. Davis v. Davis, 134 Ga. 804 , 68 S.E.2d 594 (1910); Phinizy v. Phinizy, 154 Ga. 199 , 114 S.E. 185 (1922).

Condonation will not prevent divorce if based upon condition broken by the husband. Ozmore v. Ozmore, 41 Ga. 46 (1870).

Condonation and cohabitation after filing a suit for divorce, if conditioned upon the promise of the defendant not to again be guilty of the acts charged in the petition, will not prevent the plaintiff from proceeding with the original petition for divorce in the event of a breach of the condition and agreement on the part of the defendant. Day v. Day, 210 Ga. 454 , 81 S.E.2d 6 (1954).

Resumption of cruelty vitiates condonation. - When a husband filed a suit for divorce against his wife on the ground of cruel treatment, and subsequently the marital relations were resumed on the strength of the wife's promise to desist from the acts of cruel treatment as alleged in the petition, and when on resumption of marital relations the wife did not desist from such cruel treatment and another separation took place, the act of the husband in resuming the marital relation did not amount to condonation of the wife's cruel treatment when she failed to fulfill the agreement by virtue of which the marital relations were resumed. Bruce v. Bruce, 195 Ga. 868 , 25 S.E.2d 654 (1943).

Revival of right when condition of condonation broken. - If after the condonation the conduct of the husband is such as to revive the condoned acts and give to the wife a right to assert them, she is not debarred from so doing; nor is she prevented from setting up misconduct on his part after the condonation for the consideration of the jury in determining whether a divorce should be granted. Davis v. Davis, 134 Ga. 804 , 68 S.E. 594 , 30 L.R.A. (n.s.) 73, 20 Ann. Cas. 20 (1910); Harn v. Harn, 155 Ga. 502 , 117 S.E. 383 (1923).

Question of condonation is peculiarly matter of defense in the trial of a divorce case on its merits. Lybrand v. Lybrand, 204 Ga. 312 , 49 S.E.2d 515 (1948); Johnson v. Johnson, 210 Ga. 795 , 82 S.E.2d 831 (1954).

Voluntary condonation and cohabitation subsequent to the acts complained of are matters of affirmative defense in the trial of the case upon its merits. Adams v. Adams, 213 Ga. 875 , 102 S.E.2d 566 (1958).

Condonation may be more readily presumed against husband than wife, and condonation may be presumed from cohabitation which means dwelling together. Odom v. Odom, 39 Ga. 286 (1867), overruled on other grounds, Wise v. Wise, 156 Ga. 459 , 119 S.E. 410 (1923); Phinizy v. Phinizy, 154 Ga. 199 , 114 S.E. 185 (1922); Paris v. Paris, 197 Ga. 162 , 28 S.E.2d 452 (1943).

Condonation is not so readily presumed against the wife, as the husband. Knowledge of the guilt of the husband, and forgiveness by the wife, are not legally to be presumed, but must be clearly and distinctly proved, in order to bar her action. Duncan v. Duncan, 184 Ga. 602 , 192 S.E. 215 (1937); Livingston v. Livingston, 211 Ga. 420 , 86 S.E.2d 288 (1955).

When presumption of condonation can be rebutted. - Although presumption of condonation arises if parties occupy same room and bed, such presumption can be rebutted by showing that the party seeking forgiveness has resorted to the same acts of cruel treatment which caused the initial separation. Thornton v. Thornton, 232 Ga. 666 , 208 S.E.2d 557 (1974).

Presumption rebutted when party clearly denies cohabitation. - When the plaintiff wife testified that "we were not living as man and wife," and that "there was no condonation on my part of the acts" of the husband, the general presumption of matrimonial cohabitation and condonation by the wife, arising from their occupancy of the same set of apartments, was sufficiently rebutted, so as to fully authorize a finding in her favor on the question of condonation. Duncan v. Duncan, 184 Ga. 602 , 192 S.E. 215 (1937).

When presumption not overcome. - Strong though rebuttable presumption that a marital act occurs when the parties occupy the same room is not overcome by testimony of the husband that they occupied separate beds and such an act did not occur, when he fails to give the facts and circumstances under which he found himself occupying the same room with his wife in a hotel, when the wife testifies that a marital act did occur. Duncan v. Duncan, 184 Ga. 602 , 192 S.E. 215 (1937).

Defense to pending divorce action only. - O.C.G.A. § 19-5-4 establishes only that voluntary condonation and cohabitation constitute a defense to a pending divorce action, not a ground for setting aside a previously entered divorce decree; thus, it did not apply as a defense to a divorce decree and orders for custody and property division when the cohabitation occurred before, rather than after, filing of a divorce action. Southworth v. Southworth, 265 Ga. 671 , 461 S.E.2d 215 (1995).

Moving party's admission to having committed adultery. - Jury may refuse a divorce in cases when movant committed adultery, but in such circumstances the jury may, on examination of the whole case, grant a divorce. Williford v. Williford, 230 Ga. 543 , 198 S.E.2d 181 (1973).

Jury Charge

Proper charge of mutual cruel treatment as "like conduct." - After the judge charged the jury that, "if both were guilty of cruel treatment then you would refuse a divorce to both parties," this was a sufficient charge of the law that a divorce will not be granted either party when both are guilty of "like conduct". Childs v. Childs, 223 Ga. 435 , 156 S.E.2d 21 (1967).

Error to fail to charge that jury should refuse divorce. - When each party charges and proves cruel treatment by accusations alleged by the other to be false, and denial of love for the other, it is error to fail to charge, without request, that, if the jury found both parties guilty of like conduct, the jury should refuse a divorce to either of them. Moon v. Moon, 216 Ga. 627 , 118 S.E.2d 473 (1961); McCartney v. McCartney, 217 Ga. 200 , 121 S.E.2d 785 (1961); Schwartz v. Schwartz, 222 Ga. 460 , 150 S.E.2d 809 (1966); Childs v. Childs, 223 Ga. 435 , 156 S.E.2d 21 (1967); McClellan v. McClellan, 224 Ga. 355 , 162 S.E.2d 425 (1968).

When there is evidence that both parties have been guilty of like conduct, it is reversible error to fail to charge, without request, that, if both parties have been guilty of like conduct then no divorce shall be granted. Brackett v. Brackett, 217 Ga. 84 , 121 S.E.2d 146 (1961).

Error to overrule request for charge on definition of condonation. - When the pleadings and the evidence show repeated separations and reconciliations, after promises not to repeat the misconduct, and then a breach of such promises, and the court charged that all such conduct could be considered unless condoned, the special ground complaining of the failure to charge a definition of condonation is meritorious, and since the question of whether or not there was condonation became a material issue in the case it was error to overrule the decision. Hall v. Hall, 220 Ga. 677 , 141 S.E.2d 400 (1965).

Charge to jury when equal guilt involved. - When the plaintiff's grounds for divorce are cruel treatment, and the defendant's cross-action (now counter-claim) seeks a divorce for desertion, it is reversible error to charge the jury that they may find a divorce in favor of both parties; to so find is a contradiction, contrary to the evidence and the law. Moon v. Moon, 216 Ga. 627 , 118 S.E.2d 473 (1961).

While no objection was made by counsel for the wife to the instruction that a divorce could be granted to both parties when the jury could find that the parties were guilty of like conduct, this charge specifically authorized an invalid verdict, and it was a substantial error which is subject to review. Childs v. Childs, 223 Ga. 435 , 156 S.E.2d 21 (1967).

Condonation presents jury question. - Whether husband has condoned acts of alleged cruelty about which he complains is a question for determination by the jury. Paris v. Paris, 197 Ga. 162 , 28 S.E.2d 452 (1943).

Party estopped to challenge validity of property settlement in collusive divorce. - When the main relief sought by the plaintiff is the cancellation of certain conveyances and transfers and the recovery of real and personal property conveyed by him in pursuance of an agreement by which he obtained a divorce by collusion, he must come into a court of equity with clean hands and is estopped from attacking the validity of the decree thus self-induced. Fender v. Crosby, 209 Ga. 896 , 76 S.E.2d 769 (1953).

General Consideration

Former language of section unconstitutional. - Statute imposed alimony obligations on husbands but not wives and violated the equal protection clause of the U.S. Const., amend. 14, and was therefore unconstitutional. Stitt v. Stitt, 243 Ga. 301 , 253 S.E.2d 764 (1979).

Statute did not violate the due process clause of the state or federal Constitution because the legislative intent is clear and the statute provides "fair notice" of the statute's meaning. Davenport v. Davenport, 243 Ga. 613 , 255 S.E.2d 695 (1979).

Challenge to constitutionality. - Pro se litigant sued government and court officials alleging Georgia's alimony provisions, O.C.G.A. § 19-6-1 et seq., violated: (1) the right to privacy, protections of the equal protection clause, and prohibitions against involuntary servitude as contained in the U.S. Constitution; and (2) the right to privacy, due process provisions, equal protection provisions, privileges and immunities clause, prohibitions on involuntary servitude, and prohibitions against legislation based on social status as guaranteed by the Georgia Constitution. However, the federal court determined that the plaintiff must raise these constitutional challenges as part of the litigant's state divorce proceedings, and, furthermore, that Georgia had an important state interest in enforcing these provisions. Cormier v. Green, 141 Fed. Appx. 808 (11th Cir. July 12, 2005)(Unpublished).

O.C.G.A. § 19-6-1 provides that a party shall not be entitled to alimony if separation was caused by that party's adultery, and that in alimony cases the court shall receive evidence of the factual cause of the separation and the conduct of each party toward the other. Owens v. Owens, 247 Ga. 137 , 274 S.E.2d 484 (1981).

Legislation amending this statute meets single subject matter requirement of Ga. Const. 1976, Art. III, Sec. VII, Para. IV (see now Ga. Const. 1983, Art. III, Sec. V, Para III), because the legislation's provisions all relate to changes in divorce and alimony procedure necessitated by the advent of "no fault" divorce, and because the lien provision has a natural connection with the main object of the legislation. Davenport v. Davenport, 243 Ga. 613 , 255 S.E.2d 695 (1979).

Proceedings for divorce and alimony have always been regarded as equitable. Early v. Early, 243 Ga. 125 , 252 S.E.2d 618 (1979).

Jurisdiction. - Once personal jurisdiction in divorce proceeding exists, jurisdiction continues with respect to alimony. May v. May, 162 Ga. App. 560 , 290 S.E.2d 495 (1982).

No duty to determine amount when alimony not awarded. - In an action dissolving the marriage between the parties, having concluded that alimony would not be awarded, the trial court's consideration of the factors relevant to determining the amount thereof was obviated. Stanley v. Stanley, 281 Ga. 672 , 642 S.E.2d 94 (2007).

Permanent alimony in conjunction with absolute divorce was unknown to common law or to the ecclesiastical courts. Lloyd v. Lloyd, 183 Ga. 751 , 189 S.E. 903 (1937).

Permanent alimony statutory in nature. - Right to alimony after absolute divorce, and the granting in fee of a portion of the estate of the husband to the wife as permanent alimony is derivable solely from statutory provisions. Lloyd v. Lloyd, 183 Ga. 751 , 189 S.E. 903 (1937).

Alimony was introduced into divorce proceedings by early ecclesiastical courts of England, and in the early practice of these courts it was defined to be that support which the husband, on separation, is bound to provide for the wife, and is measured by the wants of the wife and the circumstances and the ability of the husband to pay. Lloyd v. Lloyd, 183 Ga. 751 , 189 S.E. 903 (1937).

Term "alimony" is derived from Latin word which primarily meant to nourish; that is, to supply the necessities of life. Lloyd v. Lloyd, 183 Ga. 751 , 189 S.E. 903 (1937).

As general rule, meaning of "alimony" is restricted to money; and unless expressly authorized by statute, no award can be made out of the property of the husband, divesting him of title to the same. Lloyd v. Lloyd, 183 Ga. 751 , 189 S.E. 903 (1937).

Phrase "prior to the court's order on the issue of alimony," refers to either temporary or permanent alimony. Davenport v. Davenport, 243 Ga. 613 , 255 S.E.2d 695 (1979).

Purpose. - Object of alimony is the support of children as well as the wife. Eskew v. Eskew, 199 Ga. 513 , 34 S.E.2d 697 (1945).

Fundamental basis of the law is to require the husband to pay necessary expenses of his wife and minor children. Finch v. Finch, 213 Ga. 199 , 97 S.E.2d 576 (1957).

Purpose of alimony is to provide support for wife (now either spouse) and minor children, the amount to be determined from consideration of needs and ability to pay. McCurry v. McCurry, 223 Ga. 334 , 155 S.E.2d 378 (1967).

Strongest governmental purpose for Georgia's alimony laws is the provision of support for a needy spouse. Sims v. Sims, 245 Ga. 680 , 266 S.E.2d 493 (1980).

Alimony is never for purpose of penalizing the husband or wife for his or her misconduct. McCurry v. McCurry, 223 Ga. 334 , 155 S.E.2d 378 (1967).

Claim for alimony is different from ordinary debt. Kirby v. Johnson, 188 Ga. 701 , 4 S.E.2d 643 (1939); Jackson v. Jackson, 203 Ga. 296 , 46 S.E.2d 483 (1948).

Dischargeability in bankruptcy. - Bankruptcy Court erred in ruling that the jury award of $250,000.00 lump sum alimony was in the nature of alimony, maintenance, or support and thus was nondischargeable pursuant to 11 U.S.C. § 523. Ackley v. Ackley, 187 Bankr. 24 (N.D. Ga. 1995).

Jury award which requires appellant to pay appellee $3,000.00 per month for 84 months is not in the nature of alimony, maintenance, or support and thus is dischargeable pursuant to 11 U.S.C. § 523. Appling v. Rees, 187 Bankr. 27 (N.D. Ga. 1995).

Fact that a lump sum alimony award to a wife was non-modifiable did not negate the possibility that the award was for the wife's maintenance and support; even though a lump sum alimony award was in the "nature" of a property settlement, when the evidence showed that the lump sum award was for the wife's maintenance and support, the finding that it was for that purpose, rather than a division of property which was dischargeable in bankruptcy, was affirmed. Daniel v. Daniel, 277 Ga. 871 , 596 S.E.2d 608 (2004).

Alimony is not required to be awarded in no-fault divorce cases. McElroy v. McElroy, 242 Ga. 84 , 249 S.E.2d 538 (1978).

Former wife is entitled to seek permanent alimony from her husband's estate in the form of property, a lump sum award, or periodic payments until the date of death. Davenport v. Davenport, 243 Ga. 613 , 255 S.E.2d 695 (1979).

Lump sum installment award. - Discrete lump sum installment award by a jury can reasonably be interpreted as a recognition of pre-existing property rights based on equitable considerations, the satisfaction of a marital support obligation, which may include rehabilitation, or both. Nix v. Nix, 185 Bankr. 929 (Bankr. N.D. Ga. 1994).

Wife and minor children when living separate and apart from husband have legal demand upon him for support and maintenance, which is called alimony. To enforce this legal demand she may bring action and in the same proceeding move to set aside any fraudulent transfer of his property. McGahee v. McGahee, 204 Ga. 91 , 48 S.E.2d 675 (1948).

Law defining alimony contemplates "allowance" by judgment or decree of court, and not a mere provision for support in a private contract between the parties, even when the contract contains a recital that it is accepted by the wife "in full settlement of all alimony" and of all liability therefor. Hayes v. Hayes, 191 Ga. 237 , 11 S.E.2d 764 (1940).

Alimony distinguished from property settlement. - Provisions in a decree specifying periodic payments to be made until a sum certain has been paid is a property settlement, while provision for periodic payments over a given time, or unlimited time, with no indication of a gross amount other than by multiplying the amounts due by the number of payment periods is alimony. Taulbee v. Taulbee, 243 Ga. 52 , 252 S.E.2d 481 (1979); Hathcock v. Hathcock, 246 Ga. 233 , 271 S.E.2d 147 (1980).

When other provisions of agreement provided specifically for weekly payments of alimony, payments of $2,000 per year for ten years irrespective of remarriage or death of either party were a property settlement rather than alimony. Hathcock v. Hathcock, 246 Ga. 233 , 271 S.E.2d 147 (1980).

Fact that parties call payments "alimony" for income tax purposes is not controlling. Hathcock v. Hathcock, 246 Ga. 233 , 271 S.E.2d 147 (1980).

Both temporary award pending action, and amount fixed on final trial are alimony, and each is an allowance out of the husband's (now spouse's) estate, made for the support of the wife when living separate from him. Pelot v. Pelot, 193 Ga. 316 , 18 S.E.2d 548 (1942).

Hospitalization insurance for wife is element of support, and is alimony. Roberts v. Roberts, 229 Ga. 689 , 194 S.E.2d 100 (1972).

Obligation of husband to pay wife's debts is element of support and is "alimony". Beach v. Beach, 224 Ga. 701 , 164 S.E.2d 114 (1968).

Husband's obligation to make a lump-sum cash payment to his ex-wife could not be characterized as alimony for garnishment purposes, when the terms of the divorce decree described an exchange of assets between the parties, and it was clear that alimony was not involved. Boyd v. Boyd, 191 Ga. App. 718 , 382 S.E.2d 730 (1989).

Divorce decree is ineffectual to vest in wife any interest in property acquired by husband in future as such expectation or interest cannot be a part of his estate out of which an allowance of alimony can be made. Meeks v. Kirkland, 228 Ga. 607 , 187 S.E.2d 296 (1972).

Attorney's fees in divorce and alimony proceedings are not allowed as such, but as an intrinsic part of alimony awarded for the purpose of enabling the wife to contest the issues between herself and her husband. Summers v. Summers, 212 Ga. 614 , 94 S.E.2d 725 (1956).

Spouse may settle claims and waive alimony. - Wife may, for a consideration, settle her claims against her husband's property by private agreement, and waive all claims for support, maintenance, or alimony. In re Smith, 436 F. Supp. 469 (N.D. Ga. 1977).

Alimony secured by promissory notes enforceable. - When in a divorce case the parties agreed upon a sum of money, payable in monthly installments, the several installments being represented by negotiable promissory notes payable to the wife and secured by a deed to land, the manifest intention of the parties was to fix a lump sum alimony, for which the husband would be unconditionally liable, and marriage of the wife to another man after obtaining a divorce would be no defense against payment of the notes and would not prevent the holder from enforcing payment as provided in the security deed. Brown v. Farkas, 195 Ga. 653 , 25 S.E.2d 411 (1943).

Settlement of temporary alimony enforceable to prevent court order of temporary alimony. - There is no express statutory law dealing with settlements of temporary alimony, but they are lawful and enforceable as a bar to the wife's recovering temporary alimony in court. Finch v. Finch, 213 Ga. 199 , 97 S.E.2d 576 (1957).

Court may not adopt temporary settlement absent authorization in agreement. - When agreement relating to temporary alimony contained no authorization that it be made the judgment of the court, the court could not lawfully make it such. Finch v. Finch, 213 Ga. 199 , 97 S.E.2d 576 (1957).

Parental obligation to support child not applicable to alimony proceedings. - Statutory provision that the parent was liable for the support of his minor child has no application to proceedings for alimony. Eskew v. Eskew, 199 Ga. 513 , 34 S.E.2d 697 (1945).

Award of alimony is erroneous when there is no prayer for that relief. Pray v. Pray, 223 Ga. 215 , 154 S.E.2d 208 (1967).

Grant or refusal of temporary alimony is question for court; that of permanent alimony is for jury to determine. Brown v. Brown, 224 Ga. 90 , 160 S.E.2d 343 (1968).

Judgment denying divorce and permanent alimony does not constitute res judicata or estoppel preventing recovery of temporary alimony for support and for the payment of attorney's fees incurred in prosecuting or defending the divorce and alimony proceeding. Chlupacek v. Chlupacek, 226 Ga. 520 , 175 S.E.2d 834 (1970).

Retirement benefits. - Payments a husband was to make to his wife on his salary included retirement benefits. Guntin v. Guntin, 263 Ga. 241 , 430 S.E.2d 6 (1993).

Military retirement pay. - Subjecting appellee's military pension to distribution as alimony did not conflict with the mandate of U.S. Supreme Court decision protecting military retirement benefits from distribution as community property in a divorce action, since Georgia law protects the ex-spouse by awarding alimony based on need and does not grant absolute right to one-half of such pension. Stumpf v. Stumpf, 249 Ga. 759 , 294 S.E.2d 488 (1982).

Jury can hear evidence concerning all of the appellee's assets, including the appellee's military retirement pay, as relevant to an award of alimony, and the trial court erred when the court entered an order keeping evidence of such retirement pay from the jury. Stumpf v. Stumpf, 249 Ga. 759 , 294 S.E.2d 488 (1982).

Trial court's order that a husband designate a wife as the beneficiary of the survivor benefit plan under the husband's military pension was proper as essentially a life insurance protecting the husband's alimony obligation to the wife, even though the husband's pension was the husband's separate pre-marital property. Hipps v. Hipps, 278 Ga. 49 , 597 S.E.2d 359 (2004).

Portion of the order declaring that payment of the husband's military retirement benefits shall continue until the wife dies or remarries was contrary to law because the wife was to be awarded an equitable portion of the husband's military retirement benefits as part of the equitable division of marital property that survived the wife's death or remarriage. Frost v. Frost, 299 Ga. 278 , 787 S.E.2d 693 (2016).

Social security, interest, and dividends derived from a variety of sources are not compensation from an employer for services rendered and thus are not included in "salary" for alimony purposes. Guntin v. Guntin, 263 Ga. 241 , 430 S.E.2d 6 (1993).

Trial court's award was excessive based on an exaggerated determination of the spouse's earning capacity. Duncan v. Duncan, 262 Ga. 872 , 426 S.E.2d 857 (1993).

No error when some evidence supported decision. - When some evidence supported the trial court's decision, the trial court did not err in the court's determination of the amount of spousal support to be paid by a husband, including the wife's attorney fees. Bloomfield v. Bloomfield, 282 Ga. 108 , 646 S.E.2d 207 (2007).

Alimony award proper. - Alimony award was not improper because, inter alia, there was nothing in the record to show the trial court did not take into account the evidence adduced at trial; moreover, the transcript showed many questions and comments by the trial court, several of which indicated that the court considered the wife's needs, the husband's ability to pay, and the factors set forth in O.C.G.A. § 19-6-5(a) . Sprouse v. Sprouse, 285 Ga. 468 , 678 S.E.2d 328 (2009).

Trial court did not abuse the court's discretion in setting alimony at $1,250 per month, pursuant to O.C.G.A. §§ 19-6-1(c) and 19-6-5(a) , because the trial court properly considered, inter alia, the value of the husband's pension, the overwhelming marital debt, the husband's contribution of inherited assets to the marriage, and the wife's recent promotion, accompanied by a raise in salary and benefits. Hammond v. Hammond, 290 Ga. 518 , 722 S.E.2d 729 (2012).

Finding as to husband's income proper. - Trial court's findings supporting the court's child support and alimony awards were proper because the trial court considered, inter alia, the husband's personal expenses paid by the husband's companies and the husband's loan application and financial affidavit in arriving at the court's determination of the husband's income; additionally, the trial court took into account the wife's status as a stay-at-home mother since the birth of the parties' son, the husband's conduct towards the wife, and the wife's potential income from the trial court's award to the wife of one of the husband's companies. The evidence also supported the trial court's finding that no deviation from the presumptive child support award was warranted under O.C.G.A. § 19-6-15(i) based on the alimony award. Walton v. Walton, 285 Ga. 706 , 681 S.E.2d 165 (2009).

Cited in Lundy v. Lundy, 162 Ga. 42 , 132 S.E. 389 (1926); Lowry v. Lowry, 170 Ga. 349 , 153 S.E. 11 (1930); McLendon v. McLendon, 192 Ga. 70 , 14 S.E.2d 477 (1941); Attaway v. Attaway, 193 Ga. 51 , 17 S.E.2d 72 (1941); Joel Bailey Davis, Inc. v. Poole, 194 Ga. 824 , 22 S.E.2d 795 (1942); Green v. Starling, 203 Ga. 10 , 45 S.E.2d 188 (1947); Von Kamp v. Gary, 204 Ga. 875 , 52 S.E.2d 591 (1949); Finch v. Finch, 213 Ga. 199 , 97 S.E.2d 576 (1957); Shivers v. Shivers, 215 Ga. 536 , 111 S.E.2d 376 (1959); Thome v. Thome, 218 Ga. 359 , 127 S.E.2d 916 (1962); Hewlett v. Hewlett, 220 Ga. 656 , 140 S.E.2d 898 (1965); Hudson v. Hudson, 220 Ga. 730 , 141 S.E.2d 453 (1965); Bugden v. Bugden, 225 Ga. 413 , 169 S.E.2d 337 (1969); Barnes v. Barnes, 230 Ga. 226 , 196 S.E.2d 390 (1973); Ryle v. Ryle, 130 Ga. App. 680 , 204 S.E.2d 339 (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); Byrd v. Byrd, 238 Ga. 569 , 233 S.E.2d 799 (1977); Gorman v. Gorman, 239 Ga. 312 , 236 S.E.2d 652 (1977); Kitchens v. Kitchens, 239 Ga. 643 , 238 S.E.2d 429 (1977); Carr v. Carr, 240 Ga. 161 , 240 S.E.2d 50 (1977); Stock v. Commissioner, 551 F.2d 614 (5th Cir. 1977); Moore v. Moore, 240 Ga. 588 , 242 S.E.2d 100 (1978); Hargrett v. Hargrett, 242 Ga. 725 , 251 S.E.2d 235 (1978); Bryan v. Bryan, 242 Ga. 826 , 251 S.E.2d 566 (1979); Ford v. Ford, 243 Ga. 763 , 256 S.E.2d 446 (1979); Stitt v. Stitt, 243 Ga. 730 , 256 S.E.2d 461 (1979); Sims v. Sims, 245 Ga. 680 , 266 S.E.2d 493 (1980); Smith v. Smith, 245 Ga. 684 , 266 S.E.2d 496 (1980); Stokes v. Stokes, 246 Ga. 765 , 273 S.E.2d 169 (1980); Owens v. Owens, 247 Ga. 139 , 274 S.E.2d 484 (1981); Dolvin v. Dolvin, 248 Ga. 439 , 284 S.E.2d 254 (1981); Head v. Hook, 248 Ga. 818 , 285 S.E.2d 718 (1982); Hurley v. Hurley, 249 Ga. 220 , 290 S.E.2d 70 (1982); Jackson v. Jackson, 253 Ga. 576 , 322 S.E.2d 725 (1984); Smith v. Smith, 254 Ga. 450 , 330 S.E.2d 706 (1985); Courtney v. Courtney, 256 Ga. 97 , 344 S.E.2d 421 (1986); Head v. Head, 234 Ga. App. 469 , 507 S.E.2d 214 (1998).

Valid Marriage Required

Existence of valid marriage is essential to recovery of alimony. Foster v. Foster, 178 Ga. 791 , 174 S.E. 532 (1934); Reed v. Reed, 202 Ga. 508 , 43 S.E.2d 539 (1947).

Right to recover alimony depends upon a valid, subsisting marriage between the applicant and the party out of whose estate the allowance of alimony is claimed, and this is true even though it is claimed only for the support of a child. Eskew v. Eskew, 199 Ga. 513 , 34 S.E.2d 697 (1945).

When marriage void due to previous marriage or legal incapacity. - On an interlocutory hearing, when it appeared conclusively from the pleadings and the evidence that no valid marriage ever existed between the parties, either because of a previously undissolved marriage or because of the legal incapacity of one of the parties to enter into the marital contract, the trial court could not properly make an award of temporary alimony and counsel fees to the wife. Reed v. Reed, 202 Ga. 508 , 43 S.E.2d 539 (1947).

Grant of alimony improper when marriage void due to minority of parties. - When at the time of purported marriage, and at the time of order granting alimony on the application of the mother for the support of their child, the partner was less than 17 years of age (now 16 years of age) the grant of such judgment against him was contrary to law, since there was no valid marriage to support it, and whether the father could in some way be held liable for support of the child, he could not be subject to such liability through a claim of alimony. Eskew v. Eskew, 199 Ga. 513 , 34 S.E.2d 697 (1945).

Spouse not estopped to set up invalidity of marriage in alimony action. - Although the applicant for temporary alimony and the alleged husband lived together some years after the marriage ceremony between them was performed, inasmuch as the disqualification to marry was not removed, the husband was not estopped from setting up the invalidity of his marriage to the plaintiff in the action for alimony. Reed v. Reed, 202 Ga. 508 , 43 S.E.2d 539 (1947).

Factors to Be Considered

Necessities of spouse entitled to alimony, and spouse's ability to pay alimony, are controlling factors to be considered and followed in making an allowance for alimony, temporary or permanent. Robertson v. Robertson, 207 Ga. 686 , 63 S.E.2d 876 (1951); Wills v. Wills, 215 Ga. 556 , 111 S.E.2d 355 (1959).

Trial court did not err in awarding a wife $200,000 in lump-sum alimony, to be paid in monthly installments of $3,500 for five years because the record contained some evidence supporting the court's finding that the husband could pay the alimony awarded and that the wife needed it in as much as the husband was capable of earning a minimum of $150,000 per year, lived with a girlfriend, and had virtually no living expenses, and the wife was forced to leave the marital residence due to its foreclosure, worked part-time as a waitress and was enrolled in college, and struggled with tuition payments as well as day-to-day living expenses. Driver v. Driver, 292 Ga. 800 , 741 S.E.2d 631 (2013).

Spouse's "ability to pay" may be found from his or her assets or earning capacity. Although a person's income is some evidence of that person's earning capacity, it is not the only such evidence. A college student has capacity to earn even though his or her income is less than that of a person employed full time. Gordan v. Gordan, 244 Ga. 21 , 257 S.E.2d 528 (1979).

Ability to earn an income is one factor which may be considered by the jury in awarding alimony to the wife, and the jury may award alimony on this basis although the husband may be temporarily impoverished. Pierce v. Pierce, 241 Ga. 96 , 243 S.E.2d 46 (1978).

Husband's enhanced and wife's suppressed income potential during marriage properly considered. - In determining the amount of child support and alimony a husband was required to pay, the trial court correctly considered the parties' income and other assets, as well as the fact that during the marriage, the husband enhanced the ability to increase the husband's income potential and suppressed the wife's ability to earn the income. McCoy v. McCoy, 281 Ga. 604 , 642 S.E.2d 18 (2007).

Indebtedness of parties is one factor to be considered in determining permanent alimony. Hardy v. Hardy, 221 Ga. 176 , 144 S.E.2d 172 (1965).

Portion of proceeds from future sale of nonmarital property as alimony was not error. - Award of alimony to the wife in the form of a portion of the proceeds of a future sale was proper as the award was clearly made for the wife's maintenance and support; the trial court determined that the wife's earning capacity was diminished due to an unspecified disability, pursuant to O.C.G.A. § 19-6-5 , and it appeared that in practicality, the marital home was the only non-liquid asset from which an award of alimony could be made. Smelser v. Smelser, 280 Ga. 92 , 623 S.E.2d 480 (2005).

Jury may consider husband's present income and any previous allotment voluntarily made for support of the wife since the court may always give consideration to securing for the wife the same social standing, comforts, and luxuries of life as she probably would have enjoyed had there been no separation. Wills v. Wills, 215 Ga. 556 , 111 S.E.2d 355 (1959).

Relevance of conduct evidence. - In a divorce action wherein the wife challenged the trial court's denial of the wife's claim of alimony, the wife failed to demonstrate that the trial court did not weigh the several items of conduct evidence presented as to negative behavior on the part of the husband allegedly presented, such as causing the foreclosure of the marital home thereby harming the wife's credit and causing the wife to expend sums for the support of the couple's minor child; the reviewing court found that the transcript established that the evidence was not presented to the trial court for that purpose and no objection was made on that basis. Jackson v. Jackson, 282 Ga. 459 , 651 S.E.2d 92 (2007).

Wife's desertion not established. - Sole evidence of a wife's desertion, offered by the husband, was a note given to him by the wife stating that she was leaving because she "needed to get away for awhile;" the note was given to the husband approximately two months before the wife filed a complaint for divorce, and the wife's separation from the husband for the two months preceding the filing for divorce did not establish the wife's desertion by a preponderance of the evidence; the trial court did not abuse the court's discretion in awarding alimony to the wife. Cormier v. Cormier, 280 Ga. 693 , 631 S.E.2d 663 (2006).

Parties' conduct toward each other is relevant in cases in which alimony is sought by the wife. Bigham v. Bigham, 243 Ga. 171 , 253 S.E.2d 91 (1979).

Factual causes of separation and conduct of parties is admissible on question of determining amount of alimony, even though the husband concedes that the wife is entitled to alimony in the case, and evidence of acts of misconduct occurring prior to the date of the enactment of this statute, as well as prior to the date of trial, is not void for retrospectivity. Davidson v. Davidson, 243 Ga. 848 , 257 S.E.2d 269 (1979).

Wife failed to establish that a trial court manifestly abused the trial court's discretion in denying the wife's claim for alimony based on her allegations that the husband abandoned the family; failed to support the couple's minor child; and caused the marital house to go into foreclosure as there was also evidence before the trial court that the wife initiated the parties' separation; that the wife was gainfully employed and had been so throughout most of the marriage; that the wife failed to cooperate with the husband in taking steps to alleviate the family's financial problems; that the wife had mismanaged marital funds and run up extravagant bills; that the wife failed to take advantage of low-cost health insurance coverage for the couple's minor child provided by the husband's employer; and that the wife unilaterally sold or otherwise disposed of the husband's share of the couple's personal property. Jackson v. Jackson, 282 Ga. 459 , 651 S.E.2d 92 (2007).

Evidence of conduct subsequent to separation is relevant to show that such conduct prevented reconciliation of the parties. Hand v. Hand, 244 Ga. 41 , 257 S.E.2d 507 (1979).

Prestatute conduct should be admitted where relevant. Thus, former Code 1933, § 30-201 (see now O.C.G.A. § 19-6-1 ) may be applied to pre-July 1, 1977, acts of misconduct and is not void for retrospectivity. Bryan v. Bryan, 242 Ga. 826 , 251 S.E.2d 566 (1979).

Evidence of spouse's husband's adultery occurring before this statute became effective is admissible because the spouse had no vested right to commit adultery. Morris v. Morris, 244 Ga. 120 , 259 S.E.2d 65 (1979).

Adultery must be shown by means other than party testimony. - To the extent that the adultery of either spouse is admissible under O.C.G.A. § 19-6-1 , it must be proved through evidence other than the testimony of the parties. Owens v. Owens, 247 Ga. 139 , 274 S.E.2d 484 (1981).

Adultery must be cause of separation to constitute bar. - Subsection (b) of O.C.G.A. § 19-6-1 does not provide a bar in every instance of adultery. It is a bar only when the adultery has been shown to be the cause of the separation between the parties. Clements v. Clements, 255 Ga. 714 , 342 S.E.2d 463 (1986).

Adultery by both parents. - Trial court did not err in finding that the wife's adultery did not cause the dissolution of the parties' marriage as there was evidence of adultery by both parties as well as evidence that the husband had physically injured the wife and that the husband's return to Ohio to work for his father caused the dissolution of the marriage; thus, even if the trial court's order that the husband pay a certain debt could be considered to be alimony, the order did not violate O.C.G.A. § 19-6-1(b) . Alejandro v. Alejandro, 282 Ga. 453 , 651 S.E.2d 62 (2007).

Even though adulterous spouse cannot obtain alimony, equitable property division is still permissible. Peters v. Peters, 248 Ga. 490 , 283 S.E.2d 454 (1981).

Conduct of parties relevant when equitable division of property in issue. - When equitable division of property is in issue, conduct of parties, both during marriage and with reference to cause of divorce, is relevant and admissible. Peters v. Peters, 248 Ga. 490 , 283 S.E.2d 454 (1981).

Recovery, as alimony, of expenses incurred in uncovering evidence of adultery. - When spouse seeking alimony incurs expenses in employing private investigator in order to uncover evidence of adultery committed by other spouse, these expenses are, at discretion of trial court, recoverable as part of alimony award. Dunham v. Belinky, 248 Ga. 479 , 284 S.E.2d 397 (1981).

Adultery not proven thus no attorney's fees. - First spouse was entitled to alimony and attorney's fees as the second spouse had failed to show, pursuant to O.C.G.A. § 19-6-1(b) , that the first spouse had engaged in adultery. Vereen v. Vereen, 284 Ga. 755 , 670 S.E.2d 402 (2008).

Lump-sum alimony award was not dischargeable. - Lump-sum alimony award determined under federal law to be "actually in the nature of alimony, maintenance, or support" is not dischargeable pursuant to 11 U.S.C. § 523(a) (5), even though the award does not terminate upon the death or remarriage of the recipient. Myers v. Myers, 61 Bankr. 891 (Bankr. N.D. Ga. 1986).

Distinction between periodic and lump sum alimony. - Obligation to pay periodic alimony and child support terminates at the death of either party while the obligation to pay lump sum alimony in installments over a period of time does not. Winokur v. Winokur, 258 Ga. 88 , 365 S.E.2d 94 (1988).

When the words of the documents creating the obligation state the exact amount of each payment and the exact number of payments to be made without other limitations, conditions, or statements of intent, the obligation is for one lump sum payable in installments. Winokur v. Winokur, 258 Ga. 88 , 365 S.E.2d 94 (1988).

Needs of child to whom payer has no responsibility. - Needs of wife's child from previous marriage cannot be taken into account in determining amount of alimony to be awarded to wife, but jury may take into account the expense of the child to the wife in determining the amount of alimony. Barber v. Barber, 257 Ga. 488 , 360 S.E.2d 574 (1987).

Award of alimony erroneous because record completely devoid of any evidence of spouse's ability to pay. - Trial court's award of lump sum alimony in the amount of $36,500 was erroneous because although the spouse's need for resources to meet reasonable housing desires and expected medical bills justified an award of alimony, the record was completely devoid of any evidence of the other spouse's ability to pay the lump sum alimony award; the paying spouse's separate estate consisted solely of an asset that could not be transferred or otherwise converted into cash, and a $500 a week income. Coker v. Coker, 286 Ga. 20 , 685 S.E.2d 70 (2009).

Temporary Alimony

So long as divorce litigation is pending, trial judge is authorized to exercise discretion in continuing temporary alimony. Brown v. Brown, 224 Ga. 90 , 160 S.E.2d 343 (1968).

Court will not very strictly scrutinize conduct for purpose of determining right to temporary alimony. Walden v. Walden, 169 Ga. 586 , 151 S.E. 22 (1929).

Judge may base grant of temporary alimony on application for permanent alimony. - When a husband and wife are living separately, and no action for divorce is pending, and the wife has instituted against the husband an action for permanent alimony, it is not illegal for the judge on her application, after the required notice to the husband, to grant temporary alimony. Pelot v. Pelot, 193 Ga. 316 , 18 S.E.2d 548 (1942).

Proportion of estate to be given as permanent or temporary alimony is matter of judicial discretion; it is always less in the latter than in the former case as the court will not encourage vexatious suits by large grants to the wife. Lloyd v. Lloyd, 183 Ga. 751 , 189 S.E. 903 (1937).

Temporary alimony and attorney's fees are awarded to afford wife (now spouse) means of contesting all the issues between herself and the husband. Walden v. Walden, 169 Ga. 586 , 151 S.E. 22 (1929), later appeal, 171 Ga. 444 , 155 S.E. 919 (1930); Huggins v. Huggins, 202 Ga. 738 , 44 S.E.2d 778 (1947).

Temporary alimony pending action for permanent alimony does not cease with judgment when case is appealed to Supreme Court, but continues (within the discretion of the court) until the termination of the litigation in all the courts. McKay v. McKay, 93 Ga. App. 42 , 90 S.E.2d 627 (1955); Brown v. Brown, 224 Ga. 90 , 160 S.E.2d 343 (1968).

Amount of temporary alimony absolute unless modified by judge. - When a judge, in the exercise of judicial discretion, has fixed and allowed temporary alimony pending the cause for divorce and alimony or for permanent alimony, the right to the amount allowed becomes absolute until the final determination of the cause, unless in the meantime the allowance be revoked or modified by the judge. Brown v. Brown, 224 Ga. 90 , 160 S.E.2d 343 (1968).

Judge's discretion as to temporary alimony not disturbed absent abuse. - Appellate court may not control the discretion of a trial judge in awarding temporary alimony and attorney fees, unless it can be clearly shown by an appellant that the trial court committed grievous error or a gross abuse of discretion. Bowman v. Bowman, 242 Ga. 259 , 248 S.E.2d 654 (1978).

As a matter of law "temporary alimony" includes attorney's fees. Finch v. Finch, 213 Ga. 199 , 97 S.E.2d 576 (1957).

Attorney's fees are an intrinsic part of temporary alimony awarded for the purpose of enabling the wife to contest the issues between herself and her husband. Brown v. Brown, 224 Ga. 90 , 160 S.E.2d 343 (1968).

Temporary alimony, including attorney's fees and expenses of litigation, is a part of alimony which a husband is required to supply for the support of his wife. Brown v. Brown, 224 Ga. 90 , 160 S.E.2d 343 (1968).

Death of Party

Lien provision of subsection (d) of former Code 1933, § 30-201 did not create new rights in wife extending beyond date of husband's death. Instead, the lien clause preserved an inchoate right to temporary or permanent alimony existing at the date of death for subsequent determination and satisfaction from the estate. Davenport v. Davenport, 243 Ga. 613 , 255 S.E.2d 695 (1979).

Right to support survives as lien on estate after spouse dies. - 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).

Alimony payments terminate on death of spouse obligated to pay. - According to the weight of authority, a decree, granted in connection with an absolute divorce, for the regular periodical payments of alimony to the wife for her maintenance and support is terminated upon the husband's death, in the absence, at least, of some stipulation in the order which would require payments after his death. Berry v. Berry, 208 Ga. 285 , 66 S.E.2d 336 (1951).

Attorney fees authorized after party dies. - Trial court is authorized to award attorney fees for legal services performed on behalf of a party to a divorce action when, during the pendency of the action, the party dies. Love v. Love, 251 Ga. 846 , 310 S.E.2d 504 (1984).

Property subject to division despite title change upon death. - When the issue of the division of marital assets of a former husband and wife had not been resolved at the time of the husband's death, property acquired as a direct result of the labor and investments of the former husband during the course of the marriage was subject to equitable division in spite of the fact that it was titled in the former wife's name after the former husband's death as a matter of contract law. White v. White, 253 Ga. 267 , 319 S.E.2d 447 (1984).

General Consideration

Law was constitutional and any modification or repeal must necessarily be made by the General Assembly of Georgia and not by the court. Murphy v. Murphy, 232 Ga. 352 , 206 S.E.2d 458 (1974), cert. denied, 421 U.S. 929, 95 S. Ct. 1656 , 44 L. Ed. 2 d 87 (1975).

Court must consider financial circumstances. - When the trial court did not consider the financial circumstances of both parties as part of the court's determination of the amount of attorney fees, if any, to be allowed in a contempt proceeding, there was no evidence that the ex-wife was able to pay the attorney fees ordered. Thus, if she failed to pay the awarded fees, the failure would not necessarily be a refusal to abide by the court's order, but might simply arise from an inability to pay, tantamount to imprisonment for debt. Thedieck v. Thedieck, 220 Ga. App. 764 , 470 S.E.2d 265 (1996).

Attorneys' fees award to the creditor (the debtor's former spouse) that was related to the debtor's unsuccessful efforts to obtain modifications to the divorce decree was not a domestic support obligation (DSO) as defined in the Bankruptcy Code and, thus, was not a priority claim because there was no express determination by the Georgia state court that the fees were awarded as support based upon the relative financial circumstances of the parties rather than as a sanction for frivolous litigation. Mosely v. Mosely (In re Mosely), 577 Bankr. 419 (Bankr. N.D. Ga. 2017).

Court's express reservation of jurisdiction. - Fact that court may expressly reserve jurisdiction to make additional award does not mean such reservation is mandatory. Richardson v. Richardson, 237 Ga. 830 , 229 S.E.2d 641 (1976).

Court jurisdiction over matter of attorney fees. - Trial court does not lose jurisdiction of matter of attorney fees simply because term of court ended. Richardson v. Richardson, 237 Ga. 830 , 229 S.E.2d 641 (1976).

O.C.G.A. § 19-6-2(a) is inapplicable to child custody modification actions. Wilson v. Perkins, 344 Ga. App. 869 , 811 S.E.2d 518 (2018).

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).

Words "on account" need not appear in temporary order to prevent the award of attorney fees from being final and complete. Richardson v. Richardson, 237 Ga. 830 , 229 S.E.2d 641 (1976).

Oral pronouncement of fees must be reduced to writing. - Husband's concern about the interest rate of 11.25 percent imposed on an award of attorneys fees was justified under circumstances in which the husband asserted that the date of the judgment was October 1, 2007, and the applicable prime rate was 7.75 percent, while the wife argued that the applicable prime rate was 8.25 percent, the rate on July 20, 2007, the day the trial court orally pronounced the court's judgment; however, an oral pronouncement was not a judgment. It had to have been reduced to writing and entered as a judgment to have been effective. Mongerson v. Mongerson, 285 Ga. 554 , 678 S.E.2d 891 (2009), overruled on other grounds, 288 Ga. 670 , 706 S.E.2d 456 (2011).

Reversal required when inaccurate income statement relied upon. - Final judgment and decree of divorce had to be partially reversed as to alimony and attorney's fees because the judgment relied on an inaccurate statement of the husband's income. Lutz v. Lutz, 302 Ga. 500 , 807 S.E.2d 336 (2017).

Cited in Roberts v. Roberts, 226 Ga. 203 , 173 S.E.2d 675 (1970); Margeson v. Givens, 231 Ga. 552 , 203 S.E.2d 186 (1974); Mullinax v. Mullinax, 234 Ga. 553 , 216 S.E.2d 802 (1975); Evans v. Evans, 242 Ga. 57 , 247 S.E.2d 857 (1978); Swinson v. Swinson, 242 Ga. 305 , 248 S.E.2d 675 (1978); Kight v. Kight, 242 Ga. 563 , 250 S.E.2d 451 (1978); Griffin v. Griffin, 243 Ga. 149 , 253 S.E.2d 80 (1979); Atkins v. Zachary, 243 Ga. 453 , 254 S.E.2d 837 (1979); Ford v. Ford, 243 Ga. 763 , 256 S.E.2d 446 (1979); Stitt v. Stitt, 243 Ga. 730 , 256 S.E.2d 461 (1979); Kaufmann v. Kaufmann, 246 Ga. 266 , 271 S.E.2d 175 (1980); Griffin v. Griffin, 248 Ga. 743 , 285 S.E.2d 710 (1982); Keith v. Keith, 248 Ga. 819 , 286 S.E.2d 434 (1982); Reno v. Reno, 249 Ga. 855 , 295 S.E.2d 94 (1982); Easler v. Fuller, 169 Ga. App. 110 , 311 S.E.2d 534 (1983); Norman v. Norman, 255 Ga. 32 , 334 S.E.2d 687 (1985); Cotting v. Cotting, 261 Ga. App. 370 , 582 S.E.2d 527 (2003); Cotting v. Cotting, 261 Ga. App. 370 , 582 S.E.2d 527 (2003); Page v. Baylard, 281 Ga. 586 , 642 S.E.2d 14 (2007); Stanley v. Stanley, 281 Ga. 672 , 642 S.E.2d 94 (2007); Wood v. Wood, 283 Ga. 8 , 655 S.E.2d 611 (2008); Mongerson v. Mongerson, 285 Ga. 554 , 678 S.E.2d 891 (2009), overruled on other grounds, 288 Ga. 670 , 706 S.E.2d 456 (2011); Harris v. Williams, 304 Ga. App. 390 , 696 S.E.2d 131 (2010); Baars v. Freeman, 288 Ga. 835 , 708 S.E.2d 273 (2011); Avren v. Garten, 289 Ga. 186 , 710 S.E.2d 130 (2011); Blumenshine v. Hall, 329 Ga. App. 449 , 765 S.E.2d 647 (2014); Bankston v. Warbington, 332 Ga. App. 29 , 771 S.E.2d 726 (2015); Islamkhan v. Khan, 299 Ga. 548 , 787 S.E.2d 731 (2016).

Attorney's Fees

Georgia law permits award of attorney fees in original action for temporary or permanent alimony in an amount sufficient to ensure proper legal representation. Hilsman v. Hilsman, 245 Ga. 555 , 266 S.E.2d 173 (1980).

Purpose of allowing attorney fees. - Allowance of attorney's fees in applications for divorce or alimony is a necessary provision to enable the wife to properly protect her interests. Brady v. Brady, 228 Ga. 617 , 187 S.E.2d 258 (1972).

In the allowance of attorney's fees, while the financial condition of the husband must have due weight with the court, still, except in cases where the husband is unable to pay a fee, or more than merely nominal compensation, the allowance for attorney's fees should be sufficient to insure to the wife proper legal representation by a competent attorney. Brady v. Brady, 228 Ga. 617 , 187 S.E.2d 258 (1972).

Purpose of allowing attorney fees to the wife is to enable her to contest issues between herself and her husband, and the amount of such fees is to be set in accord with this purpose. Richardson v. Richardson, 237 Ga. 830 , 229 S.E.2d 641 (1976).

Purpose of allowing attorney fees is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved. Johnson v. Johnson, 260 Ga. 443 , 396 S.E.2d 234 (1990).

Pursuant to Georgia law, when awarded, attorney fees under O.C.G.A. § 19-6-2 are awarded as an intrinsic part of temporary alimony. Vakharwala v. Vakharwala, 301 Ga. 251 , 799 S.E.2d 797 (2017).

Attorney fees are part of alimony. McClain v. McClain, 237 Ga. 80 , 227 S.E.2d 5 (1976).

Award of attorney fees in divorce proceedings constitutes alimony and therefore is nondischargeable in bankruptcy. Westmoreland, Patterson & Moseley v. Painter, 21 Bankr. 846 (Bankr. M.D. Ga. 1982).

Attorney fees are considered temporary alimony. Ford v. Ford, 245 Ga. 569 , 266 S.E.2d 183 (1980).

Attorney fees improperly awarded in modification action when original proceedings arose out of divorce action. - Attorney fees improperly awarded in action to set aside paternity and modification of child support, as the proceedings did not arise out of the original divorce case, as required by O.C.G.A. § 19-6-2 , but arose instead out of a paternity and modification action. Cothran v. Mehosky, 286 Ga. App. 640 , 649 S.E.2d 838 (2007).

Award not authorized in legitimation proceeding. - In a proceeding to legitimate a child, the trial court erred in awarding the custodial parent attorney's fees under O.C.G.A. § 19-6-2(a) as the statute only permitted such an award in alimony and divorce cases. Appling v. Tatum, 295 Ga. App. 78 , 670 S.E.2d 795 (2008).

Trial court has authority to exercise sound discretion in awarding or denying attorney's fees. Wilson v. Wilson, 243 Ga. 637 , 256 S.E.2d 334 (1979).

Attorney fees in an action for nonpayment of alimony and child support are within the discretion of the trial court. Aycock v. Aycock, 251 Ga. 104 , 303 S.E.2d 456 (1983).

Discretion of judge as to amount of allowance will not be controlled, unless there is an abuse of discretion. Brady v. Brady, 228 Ga. 617 , 187 S.E.2d 258 (1972).

Appellate court may not control the discretion of a trial judge in awarding temporary alimony and attorney fees, unless it can be clearly shown by an appellant that the trial court committed grievous error or a gross abuse of discretion. Bowman v. Bowman, 242 Ga. 259 , 248 S.E.2d 654 (1978).

In a divorce action wherein both parties presented evidence regarding each parties' respective financial conditions, the trial court did not err by denying the wife's claim for attorney fees pursuant to O.C.G.A. § 19-6-2 ; additionally, contrary to the wife's argument, the husband's alleged unwillingness to settle the divorce proceedings was irrelevant to the inquiry whether attorney fees should be awarded. Jackson v. Jackson, 282 Ga. 459 , 651 S.E.2d 92 (2007).

Consideration of parties' financial circumstances. - In a divorce action, in the absence of a transcript, an appellate court had to presume that, in accordance with O.C.G.A. § 19-6-2(a)(1), the trial court had considered the parties' financial circumstances and did not abuse the court's discretion in not ordering one spouse to pay the other spouse's attorney's fees. Dasher v. Dasher, 283 Ga. 436 , 658 S.E.2d 571 (2008).

In a divorce action, a trial court properly considered the parties' financial circumstances under O.C.G.A. § 19-6-2(a)(1) in awarding a former wife $16,000 in attorney's fees. Arkwright v. Arkwright, 284 Ga. 545 , 668 S.E.2d 709 (2008).

In a divorce proceeding, there was no merit to a husband's contention that the trial court actually based the court's award of attorney's fees to a wife on O.C.G.A. § 9-15-14 merely because the court noted the impact of the husband's litigious conduct on the reasonableness of the attorney fees the wife incurred because the trial court expressly awarded the wife attorney fees pursuant to O.C.G.A. § 19-6-2 and explicitly stated that the court was looking solely at the parties' financial circumstances and disregarding the husband's conduct in making the court's award. Kautter v. Kautter, 286 Ga. 16 , 685 S.E.2d 266 (2009).

There was no abuse of discretion in a trial court's denial of attorney fees to either party pursuant to O.C.G.A. § 19-6-2(a)(1) in their divorce action as the trial court properly based the court's determination upon consideration of the parties' relative financial positions; the husband could not seek attorney fees under O.C.G.A. § 13-6-11 . Sponsler v. Sponsler, 287 Ga. 725 , 699 S.E.2d 22 (2010).

In a divorce proceeding, a trial court's failure to award attorney's fees to a former spouse under O.C.G.A. § 19-6-2 was not an abuse of discretion as the trial court properly considered the relative financial positions of the parties. Hunter v. Hunter, 289 Ga. 9 , 709 S.E.2d 263 (2011).

In an appeal pursuant to Ga. S. Ct. R. 34(4), a trial court did not abuse the court's discretion by considering evidence that the husband and wife received financial assistance from a close relative (their respective mothers) since there was no statutory limitation on the type of evidence of financial circumstances a trial court may consider when a trial court makes an attorney's fee award under O.C.G.A. § 19-6-2 and because the award of fees under § 19-6-2 was within the trial court's discretion. Jarvis v. Jarvis, 291 Ga. 818 , 733 S.E.2d 747 (2012).

Trial court did not abuse the court's discretion by awarding the husband attorney fees under O.C.G.A. § 19-6-2 , despite the award not being sustainable under O.C.G.A. § 9-15-14(b) , because the record showed that the court carefully considered the parties' relative financial positions, their obligations under the final decree, and the substantial costs incurred by both parties, and the husband was awarded substantially less than the total amount of fees claimed to have been incurred in the litigation. Hoard v. Beveridge, 298 Ga. 728 , 783 S.E.2d 629 (2016).

Fact that a party in a divorce proceeding was able to pay for a portion of their fee obligation during the course of a lengthy and contentious divorce proceeding did not deprive the trial court of the court's statutory authority to award fees under O.C.G.A. § 19-6-2 . Hoard v. Beveridge, 298 Ga. 728 , 783 S.E.2d 629 (2016).

Trial court did not abuse the court's discretion by denying the wife's request for attorney's fees because the record reflected that the trial court considered the relative financial positions of the parties and some evidence supported the decision. Frost v. Frost, 299 Ga. 278 , 787 S.E.2d 693 (2016).

Direct testimony as to value of services is not required in determining attorney fees in cases involving alimony. Hilsman v. Hilsman, 245 Ga. 555 , 266 S.E.2d 173 (1980).

Expert evidence as to value of attorney fees not required. - While trial court is vested with sound discretion to award or refuse to award attorney fees based on the financial condition of the parties and other circumstances of the case, it 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).

Grant of attorney's fees may be enforced either by writ of fi. fa. or by attachment for contempt against the husband. Kay v. Vaughan, 224 Ga. 875 , 165 S.E.2d 131 (1968).

Deadline for requesting attorney fees. - Attorney fees must be requested at some time prior to the entry of the final judgment in a divorce trial (i.e., prior to the conclusion of the hearing on the remaining issues); but once such a request is made, the issue of attorney fees is preserved, without further reservation by the trial judge or additional application by the parties, for a decision by the trial court. Blanchet v. Blanchet, 251 Ga. 379 , 306 S.E.2d 907 (1983).

Judge may award fees after verdict. - When there has been an application for attorney's fees, a hearing thereon prior to the verdict for a divorce, and the judge has reserved decision on the question until after the verdict, an award of attorney's fees after the verdict is not invalid simply because the award was made after the verdict granting a divorce. McCurry v. McCurry, 223 Ga. 334 , 155 S.E.2d 378 (1967).

Improperly awarded attorney's fees for refusal to settle. - Whether a party is at "fault" for a refusal to settle is wholly irrelevant to the inquiry whether attorney fees should be awarded in the first instance, such that the trial court's decision to grant the husband's request for attorney fees was an abuse of the court's discretion. Weaver v. Weaver, 263 Ga. 56 , 428 S.E.2d 79 (1993).

Attorney fees for separate litigation. - Neither the plain language of O.C.G.A. § 19-6-2(a) nor its purpose of ensuring the adequate representation of the respective needs of both spouses in a divorce supports the inclusion of fees from separate litigation in a fee award under § 19-6-2(a) ; accordingly, in a divorce case the trial court erred in awarding fees for attorneys who represented the wife in a prior divorce action that was dismissed and in a proceeding before the IRS. Padilla v. Padilla, 282 Ga. 273 , 646 S.E.2d 672 (2007).

Bankruptcy court denied a Chapter 13 debtor's ex-wife's request for reimbursement of attorneys' fees she incurred to obtain a judgment against the debtor which found that a state court's award of attorneys' fees in her divorce action was a debt in the nature of support that was nondischargeable under 11 U.S.C. § 523(a)(5) and was entitled to priority under 11 U.S.C. § 507(a)(1). Nothing in the state court's order awarding the ex-wife attorneys' fees allowed her to recover additional fees for enforcing the order, and there was no merit to the ex-wife's claims that she was entitled to the additional fees under O.C.G.A. § 19-6-2 , and under O.C.G.A. § 9-15-14 because the debtor had acted in bad faith. Owoade-Taylor v. Babatunde (In re Babatunde), Bankr. (Bankr. N.D. Ga. Oct. 10, 2012).

Award of attorney's fees for improper conduct. - Trial court's award of $ 98,385 in attorney fees and expenses pursuant to O.C.G.A. § 9-15-14(b) was affirmed based on the husband's egregious and improper behavior, and abuse of the discovery process, but the additional award of $ 60,000 for misconduct pursuant to O.C.G.A. § 19-6-2 was reversed because such an award had to be a part of alimony and the parties' prenuptial agreement barred the wife from receiving alimony. Vakharwala v. Vakharwala, 301 Ga. 251 , 799 S.E.2d 797 (2017).

Alleged misconduct of husband irrelevant to attorney's fees award. - Contrary to a wife's argument, any alleged misconduct by the husband, including allegedly being disingenuous regarding sources of income during discovery and at trial, was irrelevant to the award of attorneys' fees pursuant to O.C.G.A. § 19-6-2 ; the trial court did not err when the court failed to award the wife attorneys' fees for finding the husband in wilful contempt of the original temporary support order. Johnson v. Johnson, 284 Ga. 366 , 667 S.E.2d 350 (2008).

Attorney's fees in proceeding under the Family Violence Act. - Trial court erred by applying the divorce and alimony "disparity of income" standard under paragraph (a)(1) of O.C.G.A. § 19-6-2 to a motion for attorney's fees filed under the Family Violence Act, O.C.G.A. § 19-13-1 et seq. Suarez v. Halbert, 246 Ga. App. 822 , 543 S.E.2d 733 (2000).

Failure to take into account financial circumstances. - Award of attorney's fees to a mother in connection with contempt proceedings was vacated because under the requirements of O.C.G.A. § 19-6-2 , the award of attorney's fees was improper because the trial court did not take into account the financial circumstances of the parties. Amoakuh v. Issaka, 299 Ga. 132 , 786 S.E.2d 678 (2016).

Attorney fees award not excessive. - In a divorce proceeding, given the financial statements of both parties, because the record and the transcript of the final hearing established that the trial court properly considered their relative financial positions, the trial court did not abuse the court's discretion when the court awarded attorney fees to the wife. Rieffel v. Rieffel, 281 Ga. 891 , 644 S.E.2d 140 (2007).

Denial of request for attorney fees in divorce case proper. - There was no error in denying a wife's request for attorney fees because the trial court found that both parties had utilized marital property to pay attorney fees, and the trial court did consider the respective financial conditions of the parties. Patel v. Patel, 285 Ga. 391 , 677 S.E.2d 114 (2009).

Failure to make required findings. - Trial court erred in awarding the wife attorney fees in relation to the general divorce action because the trial court failed to make the required findings of fact. McCarthy v. Ashment-McCarthy, 295 Ga. 231 , 758 S.E.2d 306 (2014).

In a contempt action arising out of a custody dispute, the trial court erred in failing to make findings sufficient to support the award of attorney fees to the ex-wife under O.C.G.A. § 9-15-14(b) or O.C.G.A. § 19-6-2 and, thus, remand for an explanation of the statutory basis for the award and any findings necessary to support the award was required. Cole v. Cole, 333 Ga. App. 753 , 777 S.E.2d 39 (2015).

Issue of attorney fees had to be remanded for an explanation of the statutory basis for the award and any findings necessary to support the award because the trial court failed to include any findings as to the financial circumstances of the parties or how its award was necessary to ensure that the husband, whose income at the time of the divorce was higher than the wife's, received effective representation in the underlying action. Rogers v. Baliles, 333 Ga. App. 725 , 776 S.E.2d 659 (2015).

Insufficient grounds for court's award. - Award of attorney's fees in a divorce and child custody proceeding was improper because it was not possible to determine the statutory ground for the award or whether the evidence was sufficient to support the award under the appropriate statutory ground. Accordingly, the case was remanded to the trial court for a statement of the statutory basis for the award of attorney fees and any finding that must be made to support the award. Moon v. Moon, 277 Ga. 375 , 589 S.E.2d 76 (2003).

Award of attorney fees to the ex-husband was reversed as attorney fees were not authorized in an action seeking a change of custody by the noncustodial parent, even if child support was also sought; there was nothing in the record to suggest that the attorney fees were awarded under O.C.G.A. § 9-15-14 , as the trial court did not rule on the ex-husband's motion seeking an amendment to the order to include reference to O.C.G.A. § 9-15-14 and seeking findings of fact to support the order. Thornton v. Intveldt, 272 Ga. App. 906 , 614 S.E.2d 175 (2005).

Award of attorney fees to the estate, if predicated on O.C.G.A. § 9-15-14(b) , was erroneous as the findings necessary to support such an award were not made; further, if the attorney's fee award was based on O.C.G.A. § 19-6-2 , it was also erroneous as there was no evidence of the parties' financial circumstances that authorized such an award. Findley v. Findley, 280 Ga. 454 , 629 S.E.2d 222 (2006).

Trial court's award of attorney's fees to a wife was not predicated on the parties' economic standing, but on the husband's "stubborn stance" in the proceeding, which was not consistent with an award of attorney's fees under O.C.G.A. § 19-6-2 . McGahee v. Rogers, 280 Ga. 750 , 632 S.E.2d 657 (2006).

Because the trial court failed to make findings sufficient to support an attorney's fee award under either O.C.G.A. § 19-6-2 or O.C.G.A. § 9-15-14(b) , this issue had to be remanded for an explanation of the statutory basis for the award and any findings necessary to support the award. Cason v. Cason, 281 Ga. 296 , 637 S.E.2d 716 (2006).

Because a review of the record showed that, after a thorough consideration of the parties' financial circumstances, the trial court denied a spouse's request for attorney's fees, the trial court did not abuse the discretion granted to the court by O.C.G.A. § 19-6-2(a)(1). Taylor v. Taylor, 283 Ga. 63 , 656 S.E.2d 828 (2008).

In a divorce case, an award of attorney fees to the wife was reversed because the trial court did not specify whether the court was awarding fees under O.C.G.A. § 9-15-14 or O.C.G.A. § 19-6-2 and had not made any findings in support of the court's award. Leggette v. Leggette, 284 Ga. 432 , 668 S.E.2d 251 (2008).

Award of attorney's fees and expenses in a petition to modify child custody was improper because there was no evidence presented to the trial court regarding the reasonableness of the fees. Lurry v. McCants, 302 Ga. App. 184 , 690 S.E.2d 496 (2010).

Trial court erred in awarding a husband attorney fees because the court merely ordered the wife to pay attorney fees to the husband without findings of fact and without any cogent evidence of the work performed by the husband's counsel and the nature thereof. Holloway v. Holloway, 288 Ga. 147 , 702 S.E.2d 132 (2010).

Trial court could not have awarded the ex-wife attorney fees under O.C.G.A. § 19-6-2(a) because the action for modification of child custody was not one for alimony, divorce and alimony, or contempt of an order arising out of alimony or divorce and alimony. Moore v. Hullander, 345 Ga. App. 568 , 814 S.E.2d 423 (2018).

Insufficient evidence regarding reasonableness of fees. - In a contempt proceeding and modification of visitation following a finding that a mother had repeatedly refused to allow a father visitation, an award of attorney's fees to the father was not supported by any testimony regarding the reasonableness of the fees, and no statutory basis was specified, requiring reversal. Weeks v. Weeks, 324 Ga. App. 785 , 751 S.E.2d 575 (2013).

Attorney's fees award proper. - There was no abuse of discretion in the trial court's award of $50,000 in attorney's fees to the wife in a divorce case; the trial court considered evidence of the financial circumstances of the parties and evidence that the wife incurred over $75,000 in litigation expenses in her efforts to obtain necessary financial documents and to effectively present the complicated financial issues raised in the case. Walton v. Walton, 285 Ga. 706 , 681 S.E.2d 165 (2009).

There was sufficient evidence regarding the husband's assets to warrant awarding the wife attorney fees for a contempt proceeding to enforce the divorce decree, but the amount had to be reexamined on remand to the extent that it was based on an erroneous award concerning the wife's share of the husband's 401(k) account. Killingsworth v. Killingsworth, 286 Ga. 234 , 686 S.E.2d 640 (2009).

Record did not support a husband's claim that the trial court made an attorney fees award because the court thought it was improper for a man to seek alimony and that the case should have settled because the trial court specifically set forth in the divorce decree that in denying alimony, the court considered the conditions of the parties and that rehabilitative alimony to the husband was not warranted since the request was premised on his less-than-credible claim that the wife had agreed with his lack of employment and his being a stay-at-home parent; as to the award of fees in favor of the wife, the trial court expressly considered the parties' fiscal circumstances as the court was obligated to do under O.C.G.A. § 19-6-2(a)(1). Klardie v. Klardie, 287 Ga. 499 , 697 S.E.2d 207 (2010).

Trial court's award of $60,000 attorney's fees to a wife under O.C.G.A. § 9-15-14 was upheld based on the trial court's order, which recounted several instances of the husband's misconduct during the litigation and found that they caused numerous delays, extra motions, and extra conversations, and forced the wife's counsel to make multiple requests for documents and answers and to go to otherwise unnecessary efforts to obtain needed documents. The award was also proper under O.C.G.A. § 19-6-2(a)(1) to ensure effective representation of both spouses. Miller v. Miller, 288 Ga. 274 , 705 S.E.2d 839 (2010).

Trial court did not abuse the court's discretion in awarding a wife attorney fees because the court considered the relative financial positions of the wife and the husband, and although the final judgment and decree did not cite a statutory basis for the attorney fee award, that omission did not mean that the basis of the award was in question; the award was made pursuant to O.C.G.A. § 19-6-2 because no motion for attorney fees was made pursuant to O.C.G.A. § 9-15-14 , and there was no indication that the trial court considered an award of attorney fees on that basis. Simmons v. Simmons, 288 Ga. 670 , 706 S.E.2d 456 (2011).

Trial court did not err in awarding the wife attorney fees without citing to O.C.G.A. § 19-6-2 as there was no requirement that the statute be cited in the trial court's order and there was evidence that the wife's counsel charged a reasonably hourly rate for a family law attorney with the attorney's training and experience. Horn v. Shepherd, 292 Ga. 14 , 732 S.E.2d 427 (2012).

Because the fee award to the mother under O.C.G.A. § 19-6-2 was not based solely on child support modification, but also on contempt allegations that arose out of the original divorce decree, the award was not an abuse of discretion. Odum v. Russell, 342 Ga. App. 390 , 802 S.E.2d 829 (2017).

Hearing proper as was subsequent award. - Husband's complaint that he was not afforded a hearing on the issue of attorney fees was without merit; the trial court began the final hearing by stating that the issues remaining for resolution at the hearing were alimony and attorney fees, and reminded the parties that testimony was regarding alimony and attorney fees only, and during the hearing, the husband's counsel argued that no award of attorney fees should be made due to the husband's financial condition. After the evidence was presented, the trial court orally announced a ruling on the issue of attorney fees and the husband voiced no objection. Mongerson v. Mongerson, 285 Ga. 554 , 678 S.E.2d 891 (2009), overruled on other grounds, 288 Ga. 670 , 706 S.E.2d 456 (2011).

Contempt

Action for contempt and modification of support and visitation. - When the ex-wife's action was not purely an action for modification of visitation, but included an action for contempt and an action to modify child support, an award of attorney fees was within the discretion of the court. McDonogh v. O'Connor, 260 Ga. 849 , 400 S.E.2d 310 (1991).

Award of attorneys' fees to the mother was proper because evidence was presented regarding the reasonableness of the fees and expenses requested and the fee was predicated on the finding of contempt. Vines v. Vines, 292 Ga. 550 , 739 S.E.2d 374 (2013).

Use of remedial proceeding of attachment for contempt. - Administrator of wife's estate has standing to use remedial proceeding of attachment for contempt against the husband for failure to obey the order of the court requiring the payment of attorney's fees. Kay v. Vaughan, 224 Ga. 875 , 165 S.E.2d 131 (1968).

When the liability of the husband for the attorney's fees awarded to the wife had accrued prior to her death, the right to enforce such award survived her death and vested in her personal representative. Kay v. Vaughan, 224 Ga. 875 , 165 S.E.2d 131 (1968).

Incarceration for contempt. - When a trial court in a civil contempt proceeding sought to obtain an ex-wife's compliance with the visitation provisions of the final divorce decree by conditioning her avoidance of, or release from, incarceration upon payment of the attorney fees award, it exceeded its authority. Thedieck v. Thedieck, 220 Ga. App. 764 , 470 S.E.2d 265 (1996).

Attorney fees in contempt proceeding. - Attorney fees are not recoverable in contempt proceeding concerning only child custody or visitation rights. Smith v. Smith, 244 Ga. 230 , 259 S.E.2d 480 (1979).

O.C.G.A. § 19-6-2(a)(1) allows the recovery of attorney fees even in a contempt proceeding involving only child custody or visitation rights. Thedieck v. Thedieck, 220 Ga. App. 764 , 470 S.E.2d 265 (1996).

Trial court's award of attorney's fees based on the court's finding of contempt for violating a provision of the parties' divorce agreement prohibiting cohabitation in the presence of the parties' children was reversed and remanded for the trial court to determine the parties' intended meaning of "cohabitation" when the parties included that term in the agreement, and a determination of whether the mother violated that provision. Todd v. Casciano, 256 Ga. App. 631 , 569 S.E.2d 566 (2002).

Since, in the context of a contempt matter brought against the client, a husband's attorney was never given proper notice of the possibility that the attorney fees hearing could have resulted in an award against the attorney pursuant to O.C.G.A. § 9-15-14(b) , the award was improper; a claim for attorney fees under O.C.G.A. § 19-6-2 was not considered a realistic opportunity to contest the need for legal services forming the basis of an O.C.G.A. § 9-15-14(b) award because the basis for an award of fees under the two statutes was different. Williams v. Cooper, 280 Ga. 145 , 625 S.E.2d 754 (2006).

Although an award of attorney fees to a wife in a declaratory judgment action brought by a husband seeking a determination of the husband's obligations under a divorce decree was not authorized by either O.C.G.A. § 9-4-9 or O.C.G.A. § 13-6-11 , the award was allowed by O.C.G.A. § 19-6-2(a)(1) because the wife's separate contempt action based on the husband's failure to comply with the divorce decree was consolidated for disposition with the husband's declaratory judgment action, and the trial court found in favor of the wife in that declaratory judgment action. Waits v. Waits, 280 Ga. App. 734 , 634 S.E.2d 799 (2006).

Trial court properly held a parent in contempt in a post-divorce matter as the parent acknowledged that the parent refused to return the parties' children to the custodial parent after summer visitation and helped the children obtain legal counsel to file a modification of custody proceeding, which was prohibited by prior trial court orders. Further, the custodial parent properly filed the contempt petition in the county wherein that parent resided and, since the custodial parent was successful in having the other parent found in contempt, the custodial parent was properly awarded attorney fees. Brochin v. Brochin, 294 Ga. App. 406 , 669 S.E.2d 203 (2008).

As a final divorce decree was not yet entered when a wife refused to sell the parties' house to the husband, and moreover, the decree did not require her to sell him the house, a trial court erred in holding her in contempt and in ordering her to pay the husband's attorney fees pursuant to O.C.G.A. § 19-6-2 . Farris v. Farris, 285 Ga. 331 , 676 S.E.2d 212 (2009).

Because the father was prohibited in filing the counterclaim for contempt and the trial court was not authorized to consider it, the trial court was also not authorized to order the mother to pay the father's attorney fees resulting therefrom. Mullins-Leholm v. Evans, 322 Ga. App. 869 , 746 S.E.2d 628 (2013).

In a contempt case brought by a former wife to enforce a divorce decree's requirement that the husband refinance two properties in his name alone, the trial court's award of attorney fees and expenses was vacated and the case remanded for the trial court to identify the statutory basis for the award and to include the requisite findings of fact supporting the award. Borotkanics v. Humphrey, 344 Ga. App. 875 , 811 S.E.2d 523 (2018).

Payment condition for purging contempt. - Trial court was authorized to award attorney fees in a contempt action arising out of a divorce and alimony case, but the court should not have made payment a condition for purging the contempt without first allowing a reasonable time to pay the fees. Gay v. Gay, 268 Ga. 106 , 485 S.E.2d 187 (1997).

State court award of attorney fees is nondischargeable. - Award of attorney's fees made by the state court in connection with divorce proceedings in that forum is nondischargeable; such fees are intended as support and should be held to be nondischargeable pursuant to 11 U.S.C. § 523(a)(5). Myers v. Myers, 61 Bankr. 891 (Bankr. N.D. Ga. 1986).

Award reversed when award altered jury's allocation of resources. - Trial court's award of a substantial sum in litigation expenses to the wife worked a change "in matter of substance" of the jury's allocation of resources between the parties necessitating reversal under O.C.G.A. § 9-12-7 , when such allocation was based upon the jury's expectation that no party would be required to pay litigation costs incurred by the other party. Stone v. Stone, 258 Ga. 716 , 373 S.E.2d 627 (1988).

Error to award fees in default proceeding. - Court erred in awarding attorney fees in a default proceeding since the issue of attorney fees had never been alleged, averred, or prayed for, and since there had been no notice whatsoever to the defendant that the issue of attorney fees would arise. Jayson v. Gardocki, 221 Ga. App. 455 , 471 S.E.2d 545 (1996).

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), appeal dismissed, 416 U.S. 901, 94 S. Ct. 1603 , 40 L. Ed. 2 d 106 (1974).

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. 2 d 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. 28 6, 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).

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).

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

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); Durham v. Durham, 160 Ga. 586 , 128 S.E. 788 (1925); McClain v. McClain, 237 Ga. 80 , 227 S.E.2d 5 (1976); Coleman v. Coleman, 240 Ga. 417 , 240 S.E.2d 870 (1977); Ford v. Ford, 245 Ga. 569 , 266 S.E.2d 183 (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); Brim v. Brim, 185 Ga. 359 , 195 S.E. 157 (1938).

Attorney fees are part of temporary alimony. Tucker v. Tucker, 164 Ga. App. 477 , 298 S.E.2d 159 (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).

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).

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).

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).

Attorney's fees may be awarded without specific award of temporary alimony. Walton v. Walton, 223 Ga. 85 , 153 S.E.2d 554 (1967).