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Lawskills.com Georgia Caselaw
NELSON, formerly ROBERTS v. ROBERTS.
21520.
Alimony, etc. Muscogee Superior Court. Before Judge Calhoun.
HEAD, Presiding Justice.
The law of our State does not authorize a trial judge to require a former husband to pay the expenses of litigation of his former wife when she brings an application for modification of a judgment for permanent alimony on behalf of their minor children, and the trial judge did not err in denying attorney's fees to the plaintiff in error in the present case.
The question presented by this record is whether or not a trial judge has the right to require a former husband to pay attorney's fees as a part of the expenses of litigation of his former wife when she files an application for modification of a permanent alimony judgment for their minor children.
When the act of 1955 (Ga. L. 1955, pp. 630-632; Code Ann. Supp. 30-220 et seq.) was enacted, which authorized applications for modification of permanent alimony judgments, it was the law of this State that attorney's fees, an intrinsic part of temporary alimony, could net be awarded to the wife after the verdict and decree of divorce held become final and the marital relation was entirely dissolved, "thereby extinguishing the rights of the former wife to recover and the liability of the former husband to pay temporary alimony." Harrison v. Harrison, 208 Ga. 70 (2) (65 SE2d 173). Statutes are presumed to be enacted by the General Assembly with full knowledge of other statutes and the decisions of the courts. Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700 (10 SE2d 375). The act of 1955 provides for the allowance of the expenses of litigation to the wife only in those instances where the application for modification is filed by the husband. Ga. L. 1955, pp. 630, 632 (Code Ann. Supp. 30-223); McClinton v. McClinton, 217 Ga. 283, 287 (122 SE2d 112).
While it might appear that it would be just for a father to pay the expenses of litigation in a case where his former wife is successful in maintaining an action to increase the alimony to be paid by him for the support of their minor children, this is not a matter that is in the discretion of the trial judge under the laws of this State, and the trial judge in the present case properly denied attorney's fees to the plaintiff in error.
Judgment affirmed. All the Justices concur.
J. Willard Register, contra.
Lanier Randall, for plaintiff in error.
ARGUED JANUARY 9, 1962 -- DECIDED FEBRUARY 8, 1962.
Friday May 22 23:00 EDT


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