Stitt v. Stitt

243 Ga. 301 (1979)

253 S.E.2d 764

STITT v. STITT.

34242.

Supreme Court of Georgia.

Argued November 15, 1978.

Decided March 8, 1979.

Rehearing Denied March 27, 1979.

Robert K. Stitt, III, pro se.

Rosenbluth, Kahn & White, Jerrell P. Rosenbluth, for appellee.

UNDERCOFLER, Presiding Justice.

This is a suit for divorce and alimony. There are no children of the marriage. This appeal is from the grant of temporary alimony including attorney fees. Appellant challenges the constitutionality of the alimony statutes contained in Code Ann. §§ 30-201-30-212 because they deny equal protection of the laws by not providing for alimony for husbands. Since the issues involved here concern only temporary alimony including attorney fees, we address only Code Ann. §§ 30-201, 30-202, 30-202. 1 and 30-203. These statutes impose alimony obligations on husbands but not wives and violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Orr v. Orr, ___ U. S. ___ (99 SC 1102, 59 LE2d ____) (1979). Accordingly we hold Code Ann. §§ 30-201, 30-202, 30-202.1, and 30-203 unconstitutional.

Nevertheless, we affirm the trial court's award of temporary alimony and attorney fees.

The superior courts have authority to award temporary alimony including attorney fees to either party *302 as a derivative and incidental power to the power to grant divorces. McGee v. McGee, 10 Ga. 477 (1851).

Judgment affirmed. All the Justices concur.