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Docket Number

26877, 26878.

Attorney(S)

Westmoreland, Hall Bryan, John L. Westmoreland, P. Joseph McGee, for appellant. Jack P. Turner, C. Fulton Brackett, for appellee.

Judges

GUNTER, Justice.

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Smart Summary

Brady v. Brady (Dockets 26877, 26878) — Supreme Court of Georgia (Decided Feb. 11, 1972)

Factual and Procedural Background

The wife initially brought an action for alimony and other relief against her husband. The husband then filed a separate action for divorce; the wife's response to that action also asked for a divorce. By agreement the two cases were tried together in Fulton Superior Court without a jury before Judge Etheridge. After hearing much evidence, the trial court entered decrees in both cases granting divorce, awarding permanent alimony to the wife, unpaid temporary alimony, attorney's fees to the wife, and a one-half undivided interest in specified real estate to the wife. The husband appealed, raising two alleged errors by the trial court.

Legal Issues Presented

Whether the trial court erred in overruling the husband's motion to reconsider the award of attorney's fees to the wife.
Whether the trial court erred in overruling the husband's amended motion for a new trial, including the contention that portions of the decree constituted an illegal and unauthorized delegation of the court's authority.

Arguments of the Parties

Appellant's (Husband's) Arguments

The trial court erred in overruling his motion to reconsider the award of attorney's fees to the wife.
The trial court erred in overruling his amended motion for a new trial on general grounds and in contending that amounts awarded (alimony, etc.) were excessive.
One special ground of the amended motion asserted that the decree was "illegal and an unauthorized delegation of the authority of the court," specifically challenging a provision that (after fixing title to the realty) required appraisal by a named appraiser and mandated that the husband pay the wife one-half of the appraised value (with reciprocal conveyancing) within ninety days — a requirement the husband argued exceeded the court's authority.

Appellee's (Wife's) Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Curtis v. Curtis, 173 Ga. 111 (159 S.E. 862)	Explains that in applications for temporary alimony the superior court judge's discretion as to the amount will not be controlled unless abused; confirms that allowance of attorney's fees is necessary to enable the wife to protect her interests and should be sufficient to secure competent legal representation, taking the husband's financial condition into account but not unduly restricting reasonable fees.	The Court relied on Curtis to conclude that the record and transcript contained ample evidence to support the trial judge's award of attorney's fees and that overruling the motion for reconsideration was not error.
Preston v. Preston, 160 Ga. 200 (127 S.E. 860)	Referenced in connection with the principle that allowance of attorney's fees should secure proper legal representation for the wife and is within the court's discretion.	Used to support the same conclusion as Curtis regarding the propriety and discretion involved in awarding attorney's fees in divorce/alimony proceedings.

Court's Reasoning and Analysis

The Court examined the record and transcript and concluded that there was ample evidence to support the trial court's award of attorney's fees. Citing Curtis v. Curtis and Preston v. Preston, the Court reiterated the governing principle that awards of attorney's fees in divorce and alimony cases fall within the superior court's discretion and should be sufficient to enable the wife to obtain competent legal representation, subject to consideration of the husband's financial condition; such discretionary determinations will not be disturbed absent an abuse of that discretion. Accordingly, the trial court did not err in overruling the husband's motion to reconsider the fee award.

As to the amended motion for a new trial, the Court held that it was not error to overrule the general grounds or the husband's contention that the amounts awarded were excessive because, although the evidence was in conflict, it supported the trial judge's determinations.

Regarding the special ground alleging an illegal delegation of authority, the Court analyzed the challenged provision of the decree. The decree had already fixed title to equal one-half undivided interests in the realty to each party. The offending provision went further by directing that the property be appraised by a named appraiser, that the appraisal be filed with counsel, and that the husband "shall" pay the wife one-half of the appraised value within ninety days while the wife "shall" then deed her one-half interest to the husband. The Court concluded this provision exceeded the court's authority because, having fixed title, the court could not require either party to purchase the other's interest at an undetermined price. The Court noted that the wife had acquiesced (by not appealing) while the husband objected and appealed.

The Court therefore directed that, on remand and within thirty days after the judgment of this Court is made, if the husband moves in the trial court to strike the challenged provision, the trial court is to strike it. If no such motion is made within the allowed time, the decree shall stand as previously entered and filed.

Holding and Implications

Holding: The Supreme Court of Georgia affirmed the trial court's judgment with direction.

Implications and direct effects:

The award of attorney's fees to the wife was upheld as supported by the record and within the trial court's discretion.
The trial court's overruling of the husband's amended motion for a new trial (including challenges to the amount of alimony and related awards) was affirmed because the evidence supported the trial court's determinations.
The Court found a specific provision of the decree — one that required appraisal and mandatory purchase obligations after title had already been fixed — to be in excess of the court's authority. The Court directed that on remand the husband may move within thirty days to strike that provision, and if he does the trial court is to strike it; if he does not, the decree remains as entered.

The opinion does not announce any broader legal precedent beyond applying established discretionary standards for attorney's fees and the court's analysis of the limited authority to impose mandatory purchase obligations after fixing title; its primary effect is the affirmance of the trial court's decree with the specified appellate direction regarding the challenged decree language.

Opinion by Justice Gunter. All the Justices concurred.

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BRADY v. BRADY (two cases).

GUNTER, Justice.

In these two appeals the wife brought an action for alimony and other relief against her husband; the husband then filed a separate action for divorce; the wife's response asked for a divorce; the cases were tried together by the court without a jury by agreement, and, after hearing much evidence, the court entered a decree in both cases granting divorce, permanent alimony to the wife, unpaid temporary alimony, attorney's fees to the wife, and a one-half undivided interest in certain real estate to the wife.

The husband has appealed, complaining of two alleged errors below: (1) the trial court overruled his motion to reconsider the attorney's fees award, and (2) the trial court overruled his motion for a new trial as amended.

1. With respect to the attorney's fees issue, we have reviewed the record and transcript; they contain ample evidence to support the award made by the trial judge, and it was not error for him to overrule the motion for reconsideration. In Curtis v. Curtis, 173 Ga. 111 ( 159 S.E. 862), this court said: "`In applications for temporary alimony, upon conflicting evidence the discretion of the judge of the superior court as to the amount of the allowance will not be controlled unless there is an abuse of discretion. The allowance of attorney's fees in applications for divorce or alimony is a necessary provision to enable the wife to properly protect her interests, which has been recognized from the earliest times. 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; and the exercise of a sound legal discretion in applying these principles in the allowance of attorney's fees will not be disturbed.' Preston v. Preston, 160 Ga. 200 ( 127 S.E. 860)."

2. With respect to the overruling of the amended motion for new trial, it was not error to overrule the usual general grounds and the appellant's contention that the amount of alimony, etc., was excessive. The evidence, though in conflict, supports the trial judge's determination.

(a) One special ground of the amended motion for new trial was that the decree was "illegal and an unauthorized delegation of the authority of the court."

The decree fixed title to one-half undivided interest in realty in the husband and one-half undivided interest in it in the wife. The appellant's complaint here is that after fixing title the decree went further and provided that the realty be thereafter appraised by a named appraiser, that his appraisal be filed with counsel for both parties, and that within ninety days after the date of the appraisal the husband shall pay the wife one-half of the appraised value and the wife shall at the same time deed her one-half undivided interest in the realty to the husband.

We consider this provision to be in excess of the court's authority since the court had already fixed title to the realty in both parties. After fixing title in both parties, we do not agree that the court could then require either party to purchase the interest of the other at an undetermined price. The wife has acquiesced in this provision of the decree by not appealing; the husband has objected and appealed. Therefore, on remand and within thirty days after the judgment of this court is made the judgment of the trial court, if the husband-appellant moves in the trial court to strike this provision of the decree, then the trial court is directed to do so. If no such motion is made within the allowed time, then the decree shall stand as previously entered and filed.

Judgment affirmed with direction. All the Justices concur.

ARGUED DECEMBER 14, 1971 — DECIDED FEBRUARY 11, 1972.

BRADY v. BRADY