Opinion
17019.
MARCH 14, 1950. REHEARING DENIED MARCH 27, 1950.
Alimony, etc. Before Judge G. C. Anderson. Richmond Superior Court. November 28, 1949.
Eugene M. Kerr, for plaintiff in error.
Randall Evans Jr., contra.
1. Where a divorce suit is pending and subsequently the wife files an ancillary petition thereto, seeking temporary and permanent support for a minor child, it is not error for the trial judge to award support to the minor child covering the period from the time of the filing of the divorce suit until the hearing on the rule nisi.
2. Where a divorce suit is pending, temporary support for a minor child and attorney's fees are proper items for the consideration of the trial judge.
3. The discretion of the trial judge in fixing the amount of temporary support for a minor child and attorney's fees will not be controlled where no abuse of discretion is shown.
No. 17019. MARCH 14, 1950. REHEARING DENIED MARCH 27, 1950.
Relating the facts chronologically, it appears that on March 5, 1946, Mae Murray filed a suit for divorce against Joe Murray. Service was acknowledged by the defendant, who consented that the case be tried at the appearance term, and a total divorce was granted on March 23. On January 11, 1947, Mae Murray Dukes (both parties to the previous divorce having remarried) filed a petition against Joe Murray, reciting the former judgment, and alleging that as an issue of that marriage there is a minor child, four years of age, who is now in her custody, but whose status had not been determined in the divorce proceedings; and she prayed for an order giving her custody of the child and that "a reasonable amount of money be awarded to the plaintiff for the support, maintenance, and education of the said minor child." Based on this petition a consent judgment was taken, awarding custody of the child to the mother and also $30 per month for its support and maintenance. Subsequently, the husband was cited for contempt for failure to make the payments, and to a judgment holding him in contempt exceptions were brought to this court and the judgment was reversed. See Murray v. Dukes, 204 Ga. 865. It was there held that the original divorce judgment was void, because the requirement as to filing the petition twenty days before the appearance term had been complied with, as the divorce judgment had been granted eighteen days after the suit was filed.
Under the status as above indicated, Mae Murray, on November 7, 1949, filed the instant case as an ancillary petition to the original divorce suit and sought custody of the child and temporary and permanent support therefor. A rule nisi was issued, and upon a hearing thereon, the trial judge, on November 28, 1949, entered a judgment for temporary support as follows:
(a) $450, payable $10 per month, being for past support and covering the period from the date the original divorce suit was filed until the hearing, which past support was computed at $10 per month. (b) $30 per month until the further order of the court. (c) $100 attorney's fees, payable $10 per month.
An exception to the foregoing judgment is now before this court.
1. Though the judgment in the original divorce case had been set aside as being null and void by reason of having been prematurely granted (see Murray v. Dukes, 204 Ga. 865, 52 S.E.2d 468), yet the case was still pending when the hearing on the ancillary petition for temporary support of the child was held, although it was more than three years after the filing of the suit for divorce. Accordingly, with the divorce suit pending, the retroactive portion of the judgment, wherein the child was awarded $450, payable $10 per month, to cover the period from the time the divorce suit was filed until the hearing on the rule nisi, was a proper element of temporary support. Swearingen v. Swearingen, 19 Ga. 265 (4); Wright v. Wright, 117 Ga. 867; Killingsworth v. Killingsworth, 148 Ga. 590 (2) ( 97 S.E. 539); Conley v. Conley, 152 Ga. 184 (5) ( 108 S.E. 777); Hobbs v. Hobbs, 158 Ga. 571 (4) ( 123 S.E. 891).
2. The award of $30 per month for temporary support of the child, and the additional award of $100 attorney's fees, payable $10 per month, were proper items for consideration in the determination of temporary support for a minor child, under Code §§ 30-202 and 30-206.
3. While the three items in the aggregate require the payment of $50 per month, and the evidence showed that the earnings of the defendant were $55 per week, this was a question in the discretion of the trial judge; and this court cannot say, as a matter of law, that the trial judge abused his discretion. Hightower v. Hightower, 202 Ga. 643 ( 44 S.E.2d 116).
Judgment affirmed. All the Justices concur.