Opinion
35373.
SUBMITTED AUGUST 30, 1979.
DECIDED JANUARY 24, 1980.
Attorney fees, etc. DeKalb Superior Court. Before Judge Tillman.
Fitzgerald, Crane Allen, Wilbur T. Fitzgerald, for appellant. James B. Drew, Jr., E. Freeman Leverett, for appellee.
Mr. Sims, the appellee, brought an action against his former wife, the appellant, seeking to having his monthly payments of alimony to her terminated. The ground for his complaint was that Mrs. Sims had a live-in-lover. See Ga. L. 1977, pp. 1253, 1255, § 1 (b). Mrs. Sims defended the action asserting that the "live-in-lover" statute was unconstitutional and asked for attorney fees to cover the defense of the case. Though the trial court found the statute constitutional, this court reversed that holding in Sims v. Sims, 243 Ga. 275 ( 253 S.E.2d 762) (1979). Subsequently, Mrs. Sims pursued her earlier request for attorney fees. After a hearing, the trial court apparently determined that after the remittitur from the Supreme Court had been made the judgment of the trial court, it had no jurisdiction to make an award of attorney fees. It is from this judgment that Mrs. Sims now appeals.
We affirm.
Pretermitting the question of the trial court's jurisdiction to award attorney fees after return of the remittitur, we find that the decision not to award attorney fees was proper in this case. When Mrs. Sims succeeded in having the "live-in-lover" statute struck down as unconstitutional, that portion of the statute which authorized an award of attorney fees to her also fell. With no basis for an award of attorney fees left, the trial court properly declined to award them.
Judgment affirmed. All the Justices concur, except Nichols, C. J., and Hill, J., who dissent.