Opinion
39309.
DECIDED FEBRUARY 16, 1962.
Complaint. Bartow Superior Court. Before Judge Davis.
Jean E. Johnson, Sr., for plaintiff in error.
Pittman Crowe, contra.
The transfer of this case to this court by the Supreme Court having adjudicated that the only questions wherein there might have been error in the trial court were not raised by the record in this case, the judgment of the trial court is affirmed.
DECIDED FEBRUARY 16, 1962.
This case was first appealed to the Supreme Court which transferred the case to this court. The opinion on the transfer is as follows: "Head, Presiding Justice. The exceptions are to an order sustaining a demurrer and an oral motion to strike the defendant's answer and to a judgment in an action upon a contract for the payment of alimony. The action is not an alimony case within the provisions of the Constitution, Art. VI, Sec. II, Par. IV ( Code Ann. § 2-3704). Hayes v. Hayes, 191 Ga. 237 ( 11 S.E.2d 764). A different result can not be reached because there appear in the record certified to this court 17 pages pertaining to other litigation between the parties, which were not made a part of the record in the action upon the contract. The Court of Appeals, and not this court, has jurisdiction of the writ of error. Transferred to the Court of Appeals. All the Justices concur." Arnold v. Arnold, 217 Ga. 430 ( 122 S.E.2d 734).
This case arises from a petition to the Superior Court of Bartow County, brought by Jewell Ray Arnold against Willard Leonard Arnold to recover a verdict and judgment for the amount allegedly due on a contract to pay alimony and child support for 16 months at $150 per month, less credits of $1,360, leaving a balance due of $780. The petition alleged that the agreement was made an order of the court. The defendant denied the material allegations of the petition and alleged that "subsequent to the divorce the plaintiff was proven to be an unfit mother of said child, and the custody of the child was removed from the plaintiff and said custody was placed within Mr. Mrs. Ellison Summey and that the father was required to pay for the support of said child the sum of $20.00 per week, which he has done so [sic] to date." The court sustained the general demurrer to the answer and rendered judgment for $780 to cover the amount due to May 1, 1961, to which judgment plaintiff in error excepted. The bill of exceptions recites: The following were specified as parts of the record material to a clear understanding of the case: "1. The original petition filed in said case being Case No. 130, together with the agreement attached thereto, together with the order dated May 1, 1959, less process. 2. The petition for contempt filed August 29, 1960, together with the order thereon dated September 30, 1960. 3. The petition of Willard Leonard Arnold filed on the 1st day of February, 1961, together with the order thereon dated February 14, 1961. 4. The order signed by the Honorable J. L. Davis dated the 20th day of February, 1961. 5. The petition being Case No. 34 filed May 11, 1961, together with the answer and cross-action thereto filed by the defendant, together with the general demurrer to the defendant's answer and cross-action and the oral motion made by the plaintiff, together with the orders dated August 10, 1961, sustaining demurrers striking the answer. 6. The order awarding judgment against the defendant in the amount of $780.00. 7. A copy of the marriage certificate dated the 2nd day of May, 1960, recorded in Book P, page 580 of the Court of Ordinary of Bartow County." Attached to the bill of exceptions following the judge's certificate were the documents and writings specified in the bill of exceptions, including the marriage certificate of Joseph G. Owens, Jr., and Jewell Ray. The judgment of the court in the proceeding referred to in the defendant's answer in this case is as follows: "The within case coming on for a hearing and having been heard it is hereby ordered and adjudged that the child in question, Christy Jane Arnold, be placed in custody and control of Mrs. Margie Cornwell for a period of five (5) days from this date and then placed in custody and control of Bartow County Welfare Department for placement in a proper home for said child. Willard Arnold to pay sum of $20.00 per week into court for support of said child and to pay the further sum of $50.00 into Court as attorney fees for prosecuting the case of Jewell Ray Arnold. This 14th day of February, 1961."
1. The only two questions which could be raised in this case are (1) whether the order of the court in a proceeding for custody subsequent to the original alimony judgment so amended the original judgment for alimony and child support in which no separate sum for the wife and child was specified as to separate the sums due for alimony from those for child support, and (2) whether the alimony to which the wife was entitled should be stopped as of the date of her remarriage. The first question is eliminated as a partial defense by the fact that no judgment was sought or obtained for the $20 per week ordered paid for the support of the child after the original alimony and support judgment. If the answer or the introduction of evidence without objection or the appearance of the marriage certificate in the record had raised the question whether the former wife's alimony payments should have been stopped as of the date of her remarriage, the Supreme Court would have had jurisdiction and the case would not have been transferred to this court. The effect of the transfer to this court can only mean that neither of the above questions is raised in this case. The answer in this case simply denies that the amount sued for is due. This is in effect nothing but a plea of the general issue, is insufficient and was properly stricken on demurrer. Richey v. Johnson, 21 Ga. App. 41 (2) ( 93 S.E. 514). Since this is true and since there is no error shown in the record or otherwise which is reviewable by this court, the judgment of the trial court is affirmed.
Judgment affirmed. Bell and Hall, JJ., concur.