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Divorce. Fulton Superior Court. Before Judge Hicks, Emeritus.
GRICE, Justice.
The award of alimony here was erroneous since there was no prayer for that relief.
This appeal is from a judgment of divorce which also ordered the appellant to pay alimony. It stems from a petition filed by Paul Frederick Pray, Sr., against Lucille Rudd Pray, in the Superior Court of Fulton County. To that petition the wife interposed an answer denying the material allegations, and praying that the plaintiff be refused a divorce and that she have "such other and further relief as the court deems proper in the premises."
The trial was before the judge without a jury. The record shows that the following transpired. Upon completion of evidence on the issue of divorce the trial judge indicated that he was inclined to grant the divorce. Thereupon, the wife requested that he consider a claim for alimony. The husband objected upon the ground that this was a divorce case only, that the question of alimony was not an issue in the case and that he was not prepared to defend a claim for alimony. Counsel for the wife then urged that alimony be granted under the prayer in her answer, above quoted. The judge then heard testimony as to the financial conditions of the parties. He subsequently entered judgment which included not only a divorce between the parties but also alimony for the wife.
There is no showing in the record of any amendment to the wife's answer so as to include a prayer relating to alimony. As above stated, the record shows that she sought alimony under her prayer for general relief, quoted above.
Accordingly, the decree in the case at bar, insofar as it sought to award alimony, was void.
Millicent Cantrell, Bettye Hynson Kehrer, for appellee.
Long & Glean, Nick Long, for appellant.
Friday May 22 19:35 EDT

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