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HEWLETT v. HEWLETT.
23136.
Alimony. Fulton Superior Court. Before Judge McKenzie.
CANDLER, Presiding Justice.
In a suit for divorce and alimony an order awarding attorney's fees and expenses of litigation after a verdict for divorce and permanent alimony has been rendered in the cause is utterly void where the court, as here, had not prior to such a verdict reserved jurisdiction of the case for the purpose of making such an award after verdict.
A final decree was entered in the cause on June 30, 1965. Such decree followed the verdict and also awarded $6,000 as additional attorney's fees and $442.35 as expenses of litigation which the plaintiff had incurred in the prosecution of her divorce and alimony suit. Query: In the circumstances of this case is the award of attorney's fees and expenses of litigation sustainable? We do not think so. The application for attorney's fees and expenses of litigation was not heard by the court prior to the rendition of a verdict granting a divorce between the parties and permanent alimony to the wife and her minor children, and it is the general rule as announced by numerous decisions of this court that a trial judge has no jurisdiction to award attorney's fees and expenses of litigation after the marital relation between a wife and her husband has been dissolved and destroyed by a divorce verdict. On dissolution of the marital tie by divorce, the wife ceased to be a member of the husband's family as effectually as if she were dead. For some of the many cases so holding, see Harrison v. Harrison, 208 Ga. 70 (2) (65 SE2d 173); Clark v. Clark, 213 Ga. 342 (99 SE2d 127); and Hunnicutt v. Hunnicutt, 214 Ga. 834 (108 SE2d 279). But it has been held by this court in Phillips v. Phillips, 146 Ga. 61 (90 SE 379), and Luke v. Luke, 159 Ga. 551 (126 SE 374), both of which are full bench decisions, that where an application for attorney's fees and expenses of litigation has been heard prior to a divorce verdict and the court reserves decision, and afterwards renders judgment in accordance with the reservation, the judgment relates back to the time of the hearing, and is not to be considered as one rendered upon a hearing occurring on the date the judgment is actually rendered. In both of those cases an application for attorney's fees was heard prior to a verdict granting a divorce, and the court, after the hearing, reserved jurisdiction for the purpose of passing on the motions until after verdicts granting divorces were rendered. In this case an application for additional attorney's fees and certain expenses of litigation was made by counsel for the wife prior to verdict and the court postponed a hearing on the application until the jury retired but not until after the rendition of a verdict granting a divorce. In these circumstances, we hold that the general rule which divests the court of jurisdiction to hear and pass on an application for attorney's fees and expenses of litigation is applicable. But it is argued in the brief for defendant in error that the holding in Crute v. Crute, 208 Ga. 724 (69 SE2d 255) requires a ruling different from the one here made. We do not think so. There the application for an allowance of additional attorney's fees was not heard prior to the verdict as in Phillips v. Phillips and Luke v. Luke, supra, and in the absence of such a hearing prior to verdict, the judge could not hear and determine the application for attorney's fees after the verdict granting a divorce was rendered. The facts in Crute's case do not bring it within the exception to the general rule that attorney's fees must be allowed before a divorce is granted between the parties. The decision in Crute is therefore contrary to and in conflict with the prior unanimous rulings of this court in Phillips v. Phillips and Luke v. Luke; and being so, it is not here a controlling precedent.
Judgment reversed. All the Justices concur, except Mobley, J., not participating for providential cause.
Powell, Goldstein, Frazer & Murphy, James K. Rankin, contra.
Wm. G. Grant, Florence Hewlett Dendy, for plaintiff in error.
SUBMITTED SEPTEMBER 15, 1965 -- DECIDED SEPTEMBER 22, 1965.
Friday May 22 21:25 EDT


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