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Alimony, etc. Before Judge Pharr. Fulton Superior Court. September 26, 1951.
HEAD, Justice.
No error is shown in the judgment awarding additional attorney's fees to counsel for the wife.
Walter M. Crute filed a petition for divorce against Fannie Mae Crute on the grounds of desertion. The respondent filed a cross-action, praying that the plaintiff's action for divorce be denied, and that she be granted temporary and permanent alimony for the support of herself and two minor children, and attorney's fees. The application for temporary alimony resulted in a judgment for the support of the children, to be paid to the defendant, in the amount of $6 per week, and $75 to counsel for the defendant "on account" as attorney's fees.
The cause came on for trial before a jury, and after the introduction of testimony, but before the cause was submitted to the jury, counsel for the defendant made a motion that the trial judge pass on the matter of additional attorney's fees to be awarded to counsel for the defendant, and "the court thereupon reserved the right to pass on the question of additional attorney's fees after the completion of the trial and before final judgment was entered in said cause."
The trial resulted in a verdict of total divorce between the parties, and an award of $25 per month for each of the two minor children until they reached the age of 21 years. Thereafter, and before entering a decree upon the verdict of the jury, the judge took up the request of counsel for the award of additional attorney's fees, and awarded counsel for the defendant $100 as additional attorney's fees, which award was included in the decree of the court pursuant to the verdict.
The plaintiff excepts to the order and decree awarding additional attorney's fees to counsel for the defendant.
The plaintiff in this case contends that, since the jury awarded the plaintiff a total divorce on the ground of desertion, the trial judge erred in awarding any additional amount to counsel for the defendant as attorney's fees. We recognize the rule insisted upon by counsel, that, where the wife abandons the husband without just cause, such abandonment will defeat a recovery by the wife of alimony and attorney's fees. Pace v. Pace, 154 Ga. 712 (115 S. E. 65); Mullikin v. Mullikin, 200 Ga. 638 (38 S. E. 2d, 281); Acree v. Acree, 201 Ga. 359 (40 S. E. 2d, 54).
In this case, there was an award of temporary alimony for the benefit of the minor children of the defendant, and attorney's fees in the amount of $75, as temporary alimony. The judgment here complained of resulted from an application by counsel for additional attorney's fees in connection with the wife's application for permanent alimony. The application or motion for additional attorney's fees was made prior to the verdict of the jury, and the judge reserved his judgment on the matter until after the verdict was returned.
Formerly our divorce law required: "The concurrent verdicts of two juries, at different terms of the court, shall be necessary to a total divorce." Code, 30-101. Under the law as it then existed, a final verdict in favor of total divorce dissolved the marriage. Burns v. Lewis, 86 Ga. 591 (13 S. E. 123); Mitchell v. Mitchell, 97 Ga. 795, 797 (25 S. E. 385). The marriage having been dissolved by a second or final verdict, the trial judge was without authority to consider thereafter an application for temporary alimony.
Whether or not the amendment to our divorce law (Ga. L. 1946, pp. 90, 91; Code, Ann. Supp., 30-101), which provides that the verdict or judgment for divorce shall not become final until the expiration of thirty days, would extend the power of the judge to consider questions pertaining to the allowance of temporary alimony made within the period of thirty days, need not here be decided. This question was not before the court in Harrison v. Harrison, 208 Ga. 70 (65 S. E. 2d, 173) where the application for temporary alimony was made long after the period required before the verdict becomes final.
The trial judge had the right to reserve his decision on the application for additional attorney's fees until after the finding of the jury, and he was not precluded by the verdict from awarding additional attorney's fees, since his judgment related back to the time when the application was made. Phillips v. Phillips, 146 Ga. 61, 62 (90 S. E. 379); Luke v. Luke, 159 Ga. 551 (126 S. E. 374). It was not error to include the additional attorney's fees in the decree rendered upon the verdict of the jury fixing the rights of the parties.
The contention of the plaintiff that the judgment is erroneous because the trial judge did not have before him any testimony as to the value of the services performed, or to be performed, by counsel for the defendant, is without merit. Sweat v. Sweat, 123 Ga. 801 (51 S. E. 716); Hobbs v. Hobbs, 158 Ga. 571 (123 S. E. 891). There was no abuse of discretion by the trial judge in the award of additional attorney's fees under the facts of this case.
Judgment affirmed. All the Justices concur.
Marvin G. Russell and Turner Paschal, for defendant.
O. C. Hancock and D. W. Rolader, for plaintiff.
Saturday May 23 04:40 EDT

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