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Pray v. Pray

Supreme Court of Georgia
Mar 14, 1967
223 Ga. 215 (Ga. 1967)

Summary

finding that in absence of any prayer for alimony in wife's answer in divorce case, wife was not entitled to alimony under her prayer for general relief

Summary of this case from Spruell v. Spruell

Opinion

23952.

ARGUED FEBRUARY 15, 1967.

DECIDED MARCH 14, 1967.

Divorce. Fulton Superior Court. Before Judge Hicks, Emeritus.

Long Glean, Nick Long, for appellant.

Millicent Cantrell, Bettye Hynson Kehrer, for appellee.


The award of alimony here was erroneous since there was no prayer for that relief.

ARGUED FEBRUARY 15, 1967 — DECIDED MARCH 14, 1967.


This appeal is from a judgment of divorce which also ordered the appellant to pay alimony. It stems from a petition filed by Paul Frederick Pray, Sr., against Lucille Rudd Pray, in the Superior Court of Fulton County. To that petition the wife interposed an answer denying the material allegations, and praying that the plaintiff be refused a divorce and that she have "such other and further relief as the court deems proper in the premises."

The trial was before the judge without a jury. The record shows that the following transpired. Upon completion of evidence on the issue of divorce the trial judge indicated that he was inclined to grant the divorce. Thereupon, the wife requested that he consider a claim for alimony. The husband objected upon the ground that this was a divorce case only, that the question of alimony was not an issue in the case and that he was not prepared to defend a claim for alimony. Counsel for the wife then urged that alimony be granted under the prayer in her answer, above quoted. The judge then heard testimony as to the financial conditions of the parties. He subsequently entered judgment which included not only a divorce between the parties but also alimony for the wife.

There is no showing in the record of any amendment to the wife's answer so as to include a prayer relating to alimony. As above stated, the record shows that she sought alimony under her prayer for general relief, quoted above.

Under these circumstances the wife waived whatever right she may have had to alimony. It is well established that relief cannot be granted for matter not alleged or prayed for. See Code § 110-101; Barbee v. Barbee, 201 Ga. 763 ( 41 S.E.2d 126).

Accordingly, the decree in the case at bar, insofar as it sought to award alimony, was void.

Judgment reversed in part; affirmed in part. All the Justices concur. Mobley and Nichols, JJ., concur specially.


Summaries of

Pray v. Pray

Supreme Court of Georgia
Mar 14, 1967
223 Ga. 215 (Ga. 1967)

finding that in absence of any prayer for alimony in wife's answer in divorce case, wife was not entitled to alimony under her prayer for general relief

Summary of this case from Spruell v. Spruell

In Pray, this court reversed an award of alimony where the wife's complaint prayed only general relief and made no specific prayer for alimony, although the issue of alimony was tried (over the husband's objection).

Summary of this case from Thomas v. Davis

In Pray v. Pray, 223 Ga. 215 (154 S.E.2d 208), relied on by the husband, there was no prayer for alimony and this court, for that reason, held that the court erred in awarding alimony.

Summary of this case from Moody v. Moody

In Pray, the husband filed a petition for divorce, which the wife opposed, and following a bench trial, the court granted the divorce.

Summary of this case from Sedehi v. Chamberlin
Case details for

Pray v. Pray

Case Details

Full title:PRAY v. PRAY

Court:Supreme Court of Georgia

Date published: Mar 14, 1967

Citations

223 Ga. 215 (Ga. 1967)
154 S.E.2d 208

Citing Cases

Thomas v. Davis

" Appellant argues that Pray v. Pray, 223 Ga. 215 ( 154 S.E.2d 208) (1967), and Lambert v. Gilmer, 228 Ga.…

Sedehi v. Chamberlin

Smith , 235 Ga. at 113, 218 S.E.2d 843 ; accord Andean Motor Co. v. Mulkey , 251 Ga. 32, 33 (2), 302 S.E.2d…