Wayman v. Wayman

Mobley, Justice. Georgia Laws 1955, pp. 630-632 (Code Ann. §§ 30-220, 30-223) providing permanent alimony for the support of a wife or child or children shall be subject to revision upon a petition filed by the husband or the wife showing a change in the income and financial status of the hus [536] band, provides further that where such application is filed by the husband, the court may require the husband to pay reasonable expenses of litigation as may be incurred by the wife, either for himself or the child or children, or both in defense thereof. This statute does not, as contended by appellant, require that such expenses "be paid ... as a condition precedent to the maintaining of the litigation by the defendant.” In fact, the statute provides that the court “may,” not “must,” require the husband to pay reasonable expenses of litigation including attorneys fees. Furthermore, we know of no way the judge could determine what would be reasonable attorneys fees and expenses of litigation prior to a hearing on the petition for modification and expenses of the wife in bringing the petition. The trial court did not err in sustaining the general demurrer to the petition of the wife to require payment of her expenses of the litigation including attorneys fees as a condition precedent to the maintaining of the husband’s petition for modification of the alimony award. This is not to say that the trial, judge might not, in the exercise of his discretion, award attorneys fees and expenses of litigation incurred during the pendency of the proceedings. Argued September 15, 1966 Decided September 22, 1966. Hugh G. Head, Jr., for appellant. Martin McFarland, for appellee. Judgment affirmed. All the Justices concur.