
    38772.
    REEDY v. REEDY.
    Decided September 9, 1982.
    
      Watson, Lawson, Bradley & Banke, John L. Watson, Jr., for appellant.
    
      H. Eugene Brown, Robert T. Romeo, for appellee.
   Judgment affirmed without opinion pursuant to Rule 59 of this court.

All the Justices concur, except Smith, J., who dissents.

Smith, Justice,

dissenting.

I dissent to the majority’s affirmance under Rule 59 in this case because I feel that the trial court’s award of attorney fees was improper. Code Ann. § 30-220 (b) authorizes an award of attorney fees against a petitioner who does not prevail in an attempt to reduce alimony on the grounds that the former spouse is involved in a meretricious relationship with a third party. In my opinion, it is unfair to award attorney fees where, in response to a § 30-220 (b) petition, the former spouse for the first time at trial asserts a valid common-law marriage between that spouse and the alleged live-in lover. In addition, § 30-220 (b) only authorizes attorney fees in an action “ [subsequent to a final judgment of divorce awarding periodic payment of alimony for the support of a spouse ...” That section is inapplicable here. The trial court found that appellant’s payments under the divorce decree were not alimony, but child support. Since the statute applies only to petitions seeking modification of temporary alimony awards, attorney fees were improperly granted.

For these reasons, I would reverse the trial court’s award of attorney fees.  