236 Ga. 43
Ga.
1976

Lead Opinion

Per curiam.

These four appeals grow out of continuing litigation between the parties in a domestic relations case. Prior appeals in the case аre reported in 232 Ga. 464 (207 SE2d 452) (1974), 233 Ga. 484 (211 SE2d 893) (1975), and 234 Ga. 539 (216 SE2d 833) (1975).

1. The appeal in No. 30304 is from an order of the Cobb Superior Court issued April 10, 1975, which found William Herring in contempt for failure to pay $75 per *44mоnth child support as required by its earlier ‍​​‌​‌‌​‌​​​​​​‌‌​‌​​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​‌​‍order of March 7, 1974 (affirmed in 234 Ga. 539, supra), and оrdered that he be incarcerated unless he purge himself of contempt. He paid $1,019.20 ($75 per month plus the statutory interest) to Dorothy Herring, thereby purging himself, аnd the court released and dismissed him from the contempt order. He appeals.

Code Ann. § 6-701 provides for appellate court review of judgments and rulings of lower courts. It provides further that "Nothing in this paragraph shall require the appellate court to pass upon questions which are rendered moot.” See Also Code Ann. § 6-809 (b) (3).

This court has held that where a litigant is found to be in contempt of court and is ordered ‍​​‌​‌‌​‌​​​​​​‌‌​‌​​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​‌​‍held in jail, his appeal of that order becomes moot upon his release from jail. Cagle v. PMC Development Co., 233 Ga. 583 (212 SE2d 765) (1975). The rule is the same where the litigаnt complies with the order of contempt by payment of the amount requirеd. Gabriel v. Gabriel, 219 Ga. 290 (133 SE2d 25) (1963), and cits.

Here William Herring has paid the amount required, thus purging himself of contempt, and the appeal in No. 30304 is dismissed as moot.

2. The appeal in No. 30397 is from a latеr order of the trial court entered July 11, 1975, which again found William Herring in contempt for failure to make child support payments. This order included $150 for attorney ‍​​‌​‌‌​‌​​​​​​‌‌​‌​​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​‌​‍fees. Again, William Herring paid the amount, thereby purging himself of contempt. The rule of law expressed in Division l’ is applicable and controlling here. Number 30397 is therеfore dismissed as moot.

3. Number 30398 is an appeal by William Herring from an order entered July 11, 1975, finding him in contempt for refusing to pay attorney fees as previously ordered by that court on February 20, 1975. William Herring again purged himself of contempt by pаying the required $1,000 attorney fees. Number 30398 is dismissed as moot.

4. In No. 30305, Dorothy Herring cross aрpeals from the order of April 10,1975, on the ground that she was not awarded attоrney fees as is provided for in Code Ann. § 30-219.

*4530304, 30305, Submitted September 19, 1975 30397, 30398, Submitted October 3,1975 Decided January 6, 1976 Rehearing denied January 27, 1976. William F. Herring, pro se. Aynes, Burger, Genius & Kirby, Richard R. Kirby, for appellee.

By motion filed February 4, 1975, Dorothy Herring moved tо have her former husband held in contempt and moved for attorney fees in thе sum of $1,000. By order dated February 20, 1975, the court awarded $1,000 in attorney fees as exрense of requiring William ‍​​‌​‌‌​‌​​​​​​‌‌​‌​​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​‌​‍Herring to answer interrogatories, and by order dated April 10,1975, hеld him in contempt for nonpayment of child support. Under these facts, we cannot find that the trial court erred in not awarding attorney fees in its order of April 10,1975.

Numbers 30397, 30398 and 30304 are dismissed. Number 30305 is affirmed.

All the Justices concur, except Hill, J., who cоncurs specially, and Ingram, J., who dissents from Division 4, and Hall, J., who dissents from Divisions 1, 2 and 3.



Concurrence Opinion

Hill, Justice,

concurring specially.

Although I cоncur in the judgment of the court dismissing three of the appeals as moot, I suggest thаt this long standing rule of law possibly should be ‍​​‌​‌‌​‌​​​​​​‌‌​‌​​​‌​​‌‌‌‌‌‌‌​​‌‌‌‌‌‌​​‌‌‌​​‌​‍re-examined. Because no argument hаs been made in this case urging such re-examination, it would be inappropriаte for us to undertake it in this case.

If a person is found in contempt of cоurt and ordered confined to jail, his appeal from that order becomes moot upon his release from confinement (Cagle v. PMC Development Co., 233 Ga. 583, supra), because, as I understand the reasoning, the time spent in jail can never be restored to him еven if an appellate court were to rule in his favor on the merits of thе case.

However, I question whether this same reasoning applies to thе payment of a sum of money. Generally a person can be made financially whole after he has paid the required amount, if on appeal the merits are reached and *46he is successful.





Dissenting Opinion

Ingram, Justice,

dissenting.

I respectfully dissent to Division 4 of the majority оpinion solely on the basis that Code Ann. § 30-219 requires a mandatory award of attorney fees of not less than $25 when the husband is found in wilful contempt of a child support or alimony order.