Hagan v. Hagan
Hagan v. Hagan
Opinion of the Court
1. The present action is not a case where the wife alleged jurisdiction of the court, and temporary alimony was awarded to enable the wife to contest the husband’s plea to the jurisdiction, within the rule stated in Carnes v. Carnes, 138 Ga. 1 (74 S. E. 785), Legg v. Legg, 150 Ga. 133 (102 S. E. 829), LaFitte v. LaFitte, 171 Ga. 404, (155 S. E. 521), and similar cases. In the present case the attachment for contempt did not issue until after a final judgment by this court affirming the judgment of the trial court in dismissing the wife’s cross-action for want of jurisdiction.
2. A judgment of a court without jurisdiction of the parties is void and may be attacked at any time and in any court where such judgment is attempted to be enforced. Code, §§ 110-701, 110-709; Parish v. Parish, 32 Ga. 653; Franklin County v. Crow, 128 Ga. 458 (57 S. E. 784); Schulze v. Schulze, 149 Ga. 532 (101 S. E. 183); Foster v. Foster, 207 Ga. 519, 523 (63 S. E. 2d, 318).
3. An award of temporary alimony by a court not having jurisdiction of the parties, or void for any other cause, can not be made the basis of a valid proceeding for contempt. Allen v. Baker, 188 Ga. 696 (4 S. E. 2d, 642); Strickland v. Strickland, 201 Ga. 293, 298 (39 S. E. 2d, 483); Swindell v. Swindell, 208 Ga. 727 (69 S. E. 2d, 197).
4. The trial court erred in adjudging the defendant in contempt.
Judgment reversed.
Dissenting Opinion
dissenting. One of the purposes of granting temporary alimony to a wife pending the husband’s action for a divorce is to assist her financially in paying expenses of the litigation. Code, § 30-202. Temporary alimony, when once granted, unless terminated by the court granting the order, continues as long as the cause pends. “The cause is pending just as long as it is litigated, whether in the superior court or in this court.” Holleman v. Holleman, 69 Ga. 676, 677; Powell v. Powell, 200 Ga. 379 (1) (37 S. E. 2d, 191). An order for temporary alimony is not void, though the husband pleads that the court has no jurisdiction over him. LaFitte v. LaFitte, 171 Ga. 404 (155 S. E. 521).
In the instant case the husband filed a suit for divorce in Bibb Superior Court on September 20, 1948, on the ground of desertion. On October 20, 1950, the wife filed a cross-petition, alleging a reconciliation after the filing of the husband’s suit and a subsequent separation, and prayed for a divorce and alimony temporary and permanent. On February 13, 1951, the wife amended her cross-petition, alleging that the husband was a resident of Glynn County. On March 9, 1951, the court awarded to the wife temporary alimony and attorney’s fees. On the same date the husband filed a demurrer to the cross-petition, asserting that the cross-petition shows on its face that the venue was not in Bibb County, and also on the same day he filed a special plea in bar, alleging that after the filing of the divorce suit there was a reconciliation, after which the parties resided
In the instant case, the husband’s suit for divorce was pending at the time the order granting temporary alimony was entered, and it was pending at the time the orders reviewed in 208 Ga. 315, supra, were entered, and was pending at the time the judg
The husband’s action in the instant case could not be said to be void ab initio, as in Jones v. Jones, 181 Ga. 747 (184 S. E. 271), where there was a total want of jurisdiction over the parties as of the beginning of the suit. In view of the husband’s pending action for divorce, under no circumstances could it be said that the order granting temporary alimony was void ab initio. The wife having obtained a supersedeas of the order dismissing her answer and cross-action, the husband was obligated to continue payments of the temporary alimony until the judgment superseded was affirmed by this court. The trial judge correctly held the husband in contempt for failure to pay alimony during this period, and his order should be affirmed.
I am authorized to say that Wyatt, J., joins in this dissent.
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