Post by Jim on Mar 2, 2009 7:04:19 GMT -5
JAYSON v. GARDOCKI.
MCMURRAY, Presiding Judge.
Attorney fees. DeKalb Superior Court. Before Judge Flake.
A96A0405.
(221 Ga. App. 455)
(471 SE2d 545)
(1996)
." We agree. We do not quarrel with plaintiff's argument that attorney fees can be authorized by OCGA 19-6-2 under a petition to modify child support ancillary to a change in custody See McDonough v. O'Connor, 260 Ga. 849 (400 SE2d 310). The fundamental obstacle to any such award in the case sub judice, however, is the want of notice to the defendant that such a claim would be pursued by plaintiff
MCDONOGH v. O'CONNOR.
S90A1182.
(260 Ga. 849)
(400 SE2d 310)
(1991)
SMITH, Presiding Justice.
Divorce, etc. Fulton Superior Court. Before Judge Daniel.The statute grants discretion in awarding attorney fees "whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case. . . ." OCGA 19-6-2. The action filed by the appellee was an action to modify visitation, an action for contempt, and an action to modify child support. "[T]he action was not purely an action for modification [of visitation]. Therefore, under OCGA 19-6-2, the award of attorney fees was in the discretion of the court." Norman v. Norman, 255 Ga. 32 (334 SE2d 687) (1985) (overruled on other grounds in Crecelius v. Brooks, 258 Ga. 372, supra).
OCGA 19-6-2. Attorney's fees; when granted; grant of final judgment; how enforced; action by attorney
(a) The grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be:
(1) Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party; and
(2) A final judgment as to the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not.
(b) Nothing contained in this Code section shall be construed to mean that attorney's fees shall not be awarded at both the temporary hearing and the final hearing.
(c) An attorney may bring an action in his own name to enforce a grant of attorney's fees made to him pursuant to this Code section.
ยง 19-6-19. Revision of judgment for permanent alimony generally -- When authorized; petition and hearing; cohabitation with third party as ground for revision; attorney's fees; temporary modification pending final trial
(a) The judgment of a court providing permanent alimony for the support of a spouse rendered on or after July 1, 1977, shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse. A petition shall be filed and returnable under the same rules of procedure applicable to divorce proceedings. No petition may be filed by either former spouse under this subsection within a period of two years from the date of the final order on a previous petition by the same former spouse. After hearing both parties and the evidence, the jury, or the judge where a jury is not demanded by either party, may modify and revise the previous judgment, in accordance with the changed income and financial status of either former spouse in the case of permanent alimony for the support of a former spouse, or in accordance with the changed income and financial status of either former spouse if such a change in the income and financial status is satisfactorily proved so as to warrant the modification and revision. In the hearing upon a petition filed as provided in this subsection, testimony may be given and evidence introduced relative to the income and financial status of either former spouse.
(b) Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse. As used in this subsection, the word "cohabitation" means dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person. In the event the petitioner does not prevail in the petition for modification on the ground set forth in this subsection, the petitioner shall be liable for reasonable attorney's fees incurred by the respondent for the defense of the action.
(c) When an action for revision of a judgment for permanent alimony under this Code section is pending, the court in its discretion may allow, upon motion, the temporary modification of such a judgment, pending the final trial on the petition. In considering an application for temporary modification under this subsection, the court shall consider evidence of any changed circumstances of the parties and the reasonable probability of the petitioner obtaining revision upon final trial. The order granting temporary modification shall be subject to revision by the court at any time before final trial.
(d) In proceedings for the modification of alimony for the support of a spouse pursuant to the provisions of this Code section, the court may award attorneys' fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require.
MCMURRAY, Presiding Judge.
Attorney fees. DeKalb Superior Court. Before Judge Flake.
A96A0405.
(221 Ga. App. 455)
(471 SE2d 545)
(1996)
." We agree. We do not quarrel with plaintiff's argument that attorney fees can be authorized by OCGA 19-6-2 under a petition to modify child support ancillary to a change in custody See McDonough v. O'Connor, 260 Ga. 849 (400 SE2d 310). The fundamental obstacle to any such award in the case sub judice, however, is the want of notice to the defendant that such a claim would be pursued by plaintiff
MCDONOGH v. O'CONNOR.
S90A1182.
(260 Ga. 849)
(400 SE2d 310)
(1991)
SMITH, Presiding Justice.
Divorce, etc. Fulton Superior Court. Before Judge Daniel.The statute grants discretion in awarding attorney fees "whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case. . . ." OCGA 19-6-2. The action filed by the appellee was an action to modify visitation, an action for contempt, and an action to modify child support. "[T]he action was not purely an action for modification [of visitation]. Therefore, under OCGA 19-6-2, the award of attorney fees was in the discretion of the court." Norman v. Norman, 255 Ga. 32 (334 SE2d 687) (1985) (overruled on other grounds in Crecelius v. Brooks, 258 Ga. 372, supra).
OCGA 19-6-2. Attorney's fees; when granted; grant of final judgment; how enforced; action by attorney
(a) The grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be:
(1) Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party; and
(2) A final judgment as to the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not.
(b) Nothing contained in this Code section shall be construed to mean that attorney's fees shall not be awarded at both the temporary hearing and the final hearing.
(c) An attorney may bring an action in his own name to enforce a grant of attorney's fees made to him pursuant to this Code section.
ยง 19-6-19. Revision of judgment for permanent alimony generally -- When authorized; petition and hearing; cohabitation with third party as ground for revision; attorney's fees; temporary modification pending final trial
(a) The judgment of a court providing permanent alimony for the support of a spouse rendered on or after July 1, 1977, shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse. A petition shall be filed and returnable under the same rules of procedure applicable to divorce proceedings. No petition may be filed by either former spouse under this subsection within a period of two years from the date of the final order on a previous petition by the same former spouse. After hearing both parties and the evidence, the jury, or the judge where a jury is not demanded by either party, may modify and revise the previous judgment, in accordance with the changed income and financial status of either former spouse in the case of permanent alimony for the support of a former spouse, or in accordance with the changed income and financial status of either former spouse if such a change in the income and financial status is satisfactorily proved so as to warrant the modification and revision. In the hearing upon a petition filed as provided in this subsection, testimony may be given and evidence introduced relative to the income and financial status of either former spouse.
(b) Subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse, the voluntary cohabitation of such former spouse with a third party in a meretricious relationship shall also be grounds to modify provisions made for periodic payments of permanent alimony for the support of the former spouse. As used in this subsection, the word "cohabitation" means dwelling together continuously and openly in a meretricious relationship with another person, regardless of the sex of the other person. In the event the petitioner does not prevail in the petition for modification on the ground set forth in this subsection, the petitioner shall be liable for reasonable attorney's fees incurred by the respondent for the defense of the action.
(c) When an action for revision of a judgment for permanent alimony under this Code section is pending, the court in its discretion may allow, upon motion, the temporary modification of such a judgment, pending the final trial on the petition. In considering an application for temporary modification under this subsection, the court shall consider evidence of any changed circumstances of the parties and the reasonable probability of the petitioner obtaining revision upon final trial. The order granting temporary modification shall be subject to revision by the court at any time before final trial.
(d) In proceedings for the modification of alimony for the support of a spouse pursuant to the provisions of this Code section, the court may award attorneys' fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require.
