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243 Ga. 637

256 S.E.2d 334

Wilson v. Wilson

Supreme Court of Georgia

Decided May 2, 1979

Supreme Court of Georgia · decided 1979-05-02

Cited by 2 later decisions — most recently March 2008

2 state decisions

Relies on McGee v. McGee · Stitt v. Stitt

Good law ✅— No negative treatment on recordhow we know

Decided 1979-05-02

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Jordan, Justice.

¶1 Appellant Louise T. Wilson was awarded the family residence and 40% of the appellee’s other assets in a divorce action between the two. The appellant’s claim for attorney fees was denied by the trial court, citing the "relative position of the parties,” and she appeals.

¶2 We affirm. At the time this case was tried Code Ann. § 30-202.1 conferred authority upon the trial court to exercise a sound discretion in awarding or denying attorney fees in divorce and alimony cases. However, this Code section was among several declared unconstitutional by this court in Stitt v. Stitt, 243 Ga. 301 (1979). In so doing, however, we upheld the trial court’s discretion with respect to the award of temporary alimony and attorney fees, citing McGee v. McGee, 10 Ga. 477 (1851). For a revision of alimony and attorney fees statutes, see Act No. 86, General Assembly, 1979 Session, signed by the Governor on April 4, 1979.

¶3 In the light of our opinion in Stitt, supra, the appellant can prevail only if the trial court has manifestly or flagrantly abused its discretion. In this case, considering the totality of the circumstances, including *638 the appellant’s substantial award of permanent alimony, the trial judge could correctly have found that the appellant was fully capable of paying her own attorneys. We find no abuse of discretion under the facts of this case.

Submitted March 30, 1979 Decided May 2, 1979 Rehearing denied May 29, 1979. O’Neal, Stone & Brown, Kice H. Stone, Randall C. Sorenson, for appellant. Harvey J. Kennedy, Jr., Stephen A. Melton, for appellee.

¶4 The cases cited by the appellant are not controlling authority after Stitt, supra.

¶5 Judgment affirmed.

All the Justices concur, except Hill, Bowles and Marshall, JJ., who dissent.
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