SHEPHERD v. SHEPHERD

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Docket Number

30831.

Attorney(S)

Glenville Haldi, for appellant. John T. Tyler, James R. Venable, Margaret Hopkins, for appellee.

Judges

INGRAM, Justice.

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Smart Summary

Factual and Procedural Background

The parties, involved in ongoing alimony and separate maintenance litigation in DeKalb Superior Court, had appeared three prior times before the Supreme Court of Georgia regarding these matters. The husband subsequently filed a separate divorce suit after the alimony judgment was affirmed. The wife sought temporary alimony in the divorce case, but the trial court denied her request after a hearing. The wife then initiated contempt proceedings against the husband for wilfully failing to pay alimony owed under the earlier alimony order. The trial court held the husband in contempt for unpaid alimony accrued before the temporary alimony order in the divorce case but refused to hold him in contempt for payments due after the denial of temporary alimony. The wife appealed, contending the denial of temporary alimony in the divorce case did not suspend her right to receive alimony under the prior order.

Legal Issues Presented

Whether the trial court erred in ruling that the order denying temporary alimony to the wife in the divorce case suspended the earlier alimony award in the separate alimony case.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tobin v. Tobin, 93 Ga. App. 568, 569 (1956)	Alimony granted under Code § 30-213 is suspended when a bona fide divorce petition is filed and a ruling on alimony in that divorce case is made.	The court relied on this precedent to explain that the prior alimony award is suspended (in abeyance) during the pendency of the divorce case with a temporary alimony order, but not necessarily terminated.
Cox v. Cox, 197 Ga. 260 (29 S.E.2d 83)	Divorce decree silent on alimony does not render prior alimony decree functus officio.	Supports the principle that prior alimony awards may remain effective unless explicitly superseded by a divorce decree.
Higgs v. Higgs, 144 Ga. 20 (85 S.E. 1041)	Related to the effect of divorce decrees on alimony awards.	Reinforces that a divorce decree not addressing alimony does not nullify prior alimony orders.
Evans v. Evans, 190 Ga. 364 (9 S.E.2d 254)	Effect of divorce decree on alimony awards.	Used to support the continuity or suspension of alimony awards pending divorce adjudication.
Evans v. Evans, 191 Ga. 752, 755 (14 S.E.2d 95)	Same principle regarding alimony and divorce decrees.	Further supports the court's interpretation of alimony suspension during divorce proceedings.
Moody v. Moody, 193 Ga. 699 (19 S.E.2d 504)	Addressed the suspension or continuation of alimony during divorce litigation.	Helped the court affirm that the prior alimony award remains in abeyance pending final divorce adjudication.
Shepherd v. Shepherd, 233 Ga. 228, 231 (210 S.E.2d 731) (1975)	Prior appellate decision in the same litigation.	Referenced to support affirmance of the contempt order regarding unpaid alimony.

Court's Reasoning and Analysis

The court analyzed the effect of Code Ann. § 30-213, which provides that an alimony order in a divorce case substitutes for any prior alimony award while the divorce petition is pending and unresolved on the merits. Since the divorce case had not been finally adjudicated, the prior alimony award was not rendered void but remained suspended ("in abeyance"). The court cited multiple precedents establishing that alimony awarded under a separate maintenance proceeding is suspended, not terminated, upon the filing of a bona fide divorce petition and an order on alimony in the divorce case. The court concluded that the trial court correctly held the husband in contempt for unpaid alimony accrued before the temporary alimony denial but properly refused contempt for payments accruing after because the prior award was suspended pending final divorce adjudication.

Holding and Implications

Judgment affirmed.

The court upheld the trial court's contempt ruling, affirming that the prior alimony award is suspended—not terminated—while the divorce case is pending and unresolved. This decision means the husband remains liable for alimony arrears accrued before the denial of temporary alimony in the divorce case, but the obligation to pay subsequent amounts depends on the final divorce decree. No new precedent was established; the ruling applies the longstanding statutory and case law framework governing alimony suspension during divorce proceedings.

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SHEPHERD v. SHEPHERD.

INGRAM, Justice.

The parties to this appeal have returned after three prior appearances in this court growing out of their alimony and separate maintenance litigation in DeKalb Superior Court — 231 Ga. 257 (1973); 232 Ga. 354 (1974); and 233 Ga. 228 (1974). A new dimension to the marital dispute was added when the husband filed a separate suit for divorce after the alimony judgment was affirmed in the last appeal to this court.

The wife then sought alimony in the divorce case and the trial court conducted a hearing on the question of temporary alimony in the divorce case on April 24, 1975. An order was entered, after hearing evidence and argument of counsel, denying any temporary alimony to the wife. Subsequently, the wife filed proceedings to have the husband held in contempt of court for wilfully failing to pay money which was owed to her under the trial court's order in the earlier alimony case.

The trial court conducted a hearing in the alimony contempt case and held the husband in contempt for not paying the alimony payments which had accrued prior to the entry of the temporary alimony order in the divorce case. However, the trial court refused to hold the husband in contempt for sums due under the prior alimony award subsequent to its denial of temporary alimony to the wife in the divorce case. The wife contends this was error because the order denying her temporary alimony in the divorce case did not cut off her right to continue receiving alimony payments under the trial court's earlier order in the alimony case.

The only issue we decide in this appeal is whether the trial court erred in ruling in the alimony contempt case that the order denying alimony to the wife in the divorce case suspended the earlier alimony award to the wife.

Under Code Ann. § 30-213, the trial court's alimony order in the divorce case is "a substitute for the [earlier alimony award] ..., as long as said petition [for divorce] shall be pending and not finally disposed of on the merits." The present record before this court indicates there has been no final trial of the divorce case, and it remains to be seen whether a final decree in the divorce case will or will not adjudicate the wife's claim to permanent alimony after the divorce.

Consequently, at this point in the divorce litigation it cannot be determined whether the prior alimony judgment will become functus officio and without further legal efficacy. For the time being, the prior alimony award is merely "in abeyance" pending final trial of the divorce case because the trial court has entered a temporary alimony order (denying temporary alimony) in the divorce case. See Code Ann. § 30-213. Should the trial court in the divorce action adjudicate the issue of permanent alimony, the prior award will be entirely superseded.

Tobin v. Tobin, 93 Ga. App. 568, 569 (5) ( 92 S.E.2d 304) (1956), relying upon several decisions of this court, states the rule thusly: "By the terms of Code § 30-213, provision is made for the grant of alimony where the husband and wife shall be living separate, or shall be bona fide in a state of separation, and there shall be no action for divorce pending. Under the terms of this section, the alimony so granted shall be suspended `when a petition for divorce shall be filed bona fide by either party, and the judge presiding shall have made his order on the motion for alimony.' Where, however, such alimony as provided for in this section has been granted the wife and subsequently a total divorce granted the husband but the divorce decree is silent as to alimony, the divorce decree does not have the effect of rendering the alimony decree functus officio. Cox v. Cox, 197 Ga. 260 ( 29 S.E.2d 83); Higgs v. Higgs, 144 Ga. 20 ( 85 S.E. 1041); Evans v. Evans, 190 Ga. 364 ( 9 S.E.2d 254); Evans v. Evans, 191 Ga. 752, 755 ( 14 S.E.2d 95); Moody v. Moody, 193 Ga. 699 (5) ( 19 S.E.2d 504)."

An application of the above principles to the facts of the present case requires that we affirm the contempt order of the trial court from which this appeal was taken. See also Shepherd v. Shepherd, 233 Ga. 228, 231 ( 210 S.E.2d 731) (1975).

Judgment affirmed. All the Justices concur.

SUBMITTED FEBRUARY 16, 1976 — DECIDED MARCH 2, 1976.