Wilson v. Wilson

243 Ga. 637 (1979)

256 S.E.2d 334

WILSON v. WILSON.

34743.

Supreme Court of Georgia.

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.

JORDAN, Justice.

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.

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.

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.

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

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