Summary
In Henderson v. Henderson, 86 Ga. App. 812 (1), 813 (72 S.E.2d 731), this court held that since the decree of another state was for alimony thereafter domesticated in this state, it was "simply an action on a debt of record," and the citation for contempt based upon an alleged failure to comply with the judgment rendered by the court of another state is not an alimony case within the provisions of the Georgia constitution, citing the language of Henderson v. Henderson, 209 Ga. 148, supra.
Summary of this case from Gray v. LoperOpinion
34183.
DECIDED SEPTEMBER 26, 1952.
Contempt; from Spalding Superior Court — Judge Byars. December 5, 1951.
Leward Hightower, for plaintiff in error.
Russell O. Clay, Barrett Hayes, contra.
1. The trial court erred in attaching the defendant for contempt for failure to pay alimony decreed by a foreign State court.
2. Such a judgment in contempt is a final judgment from which a direct bill of exceptions will lie and the motion to dismiss the writ of error is denied.
DECIDED SEPTEMBER 26, 1952.
Julia Kate Henderson brought an action against Sam Henderson Sr. in Spalding Superior Court to set up a decree of a court of the Eleventh Judicial Circuit of the State of Florida awarding the plaintiff permanent alimony, in arrears at the time in the sum of $540, for which sum she prayed judgment. She also prayed for an attachment for contempt. The court issued a rule to show cause why the prayers of the petition should not be granted. At a hearing thereon the plaintiff introduced in evidence a certified copy of the Florida decree and testified that there was past due on said judgment the sum of $540 which was admitted as being correct by the defendant. The defendant offered no testimony but insisted that the court had no authority to determine an action for contempt against the defendant in this matter. At the conclusion of the hearing the court entered the following order: "The above and foregoing matter coming on for a hearing before me on November 24, 1951, and respondent therein having been served and having failed to show any sufficient reason why he has not complied with the order of the court of the Eleventh Judicial Circuit of the State of Florida, which order was signed on the 20th day of September, 1950, as set out in the petition, it is considered and adjudged that the said defendant is in contempt of this court in failing and refusing to comply with said order and the sheriff is hereby ordered to arrest the body of the said defendant and commit him to the common jail of Spalding County, then and there to be kept until he complies with said order and until he purges himself of this contempt." To this judgment the defendant excepts.
1. This case was transferred to this court by the Supreme Court. In transferring the case the Supreme Court rendered the following opinion: "1. `An alimony decree of a sister State providing for future monthly payments, is such a decree as is enforceable in this State, under the full faith and credit clause of the Constitution of the United States, as to such payments as have become due and are unpaid at the time of a judgment thereon in this State. Roberts v. Roberts, 174 Ga. 645 ( 163 S.E. 735); Cureton v. Cureton, 132 Ga. 745, 751 ( 65 S.E. 65); Heakes v. Heakes, 157 Ga. 863, 867 ( 122 S.E. 777); McLendon v. McLendon, 66 Ga. App. 156, 159 ( 17 S.E.2d 252). But the fact that such a decree of another State was for alimony will not make the Georgia suit on such decree an alimony case, since it is "simply an action on a debt of record." McLendon v. McLendon, 192 Ga. 70 ( 14 S.E.2d 477), and cit.' Lawrence v. Lawrence, 196 Ga. 204 (3) ( 26 S.E.2d 283); Belcher v. Belcher, 204 Ga. 436 ( 49 S.E.2d 904). 2. Under the foregoing rules, a citation for contempt based upon an alleged failure to comply with a judgment rendered by a court of another State is not an alimony case within the provisions of the Constitution, Article 6, Section 2, Paragraph 4 (Code, Ann., § 2-3704), and jurisdiction of the writ of error is vested in the Court of Appeals." Henderson v. Henderson, 209 Ga. 148 ( 71 S.E.2d, 210). As foreign alimony decrees occupy the same status as ordinary foreign money judgments so far as our courts are concerned, such decrees must be reduced to judgment in this State before they can be enforced in this State. M'Elmoyle v. Cohen, 38 U.S. 312 (3). And when they are reduced to judgment in this State, they can only be enforced by execution as other money judgments. The trial court apparently issued the attachment by virtue of Code § 30-204 which states that "The order allowing alimony . . may be enforced . . by attachment for contempt against the person of the husband"; therefore, the attachment was not one for criminal contempt. Beavers v. Beavers, 148 Ga. 506 (2) ( 97 S.E. 65); Reese v. Reese, 189 Ga. 314, 315 ( 5 S.E.2d 777). An attachment for contempt for failure to pay an amount awarded as alimony is in the nature of a civil proceeding and is remedial, its purpose being merely to compel obedience to the order of the court requiring the payment of the amount allowed as alimony. Beavers v. Beavers, supra; Reese v. Reese, supra. The "order of court" contemplated by Code § 30-204 and the cases above cited is an order of a court of this State and not an order of a court of a foreign State. The trial court in the instant case issued no order for alimony with which the defendant failed to comply. Even had the court issued such an alimony order by virtue of the Florida decree, it would not have been a valid order, the court's power being merely to issue an ordinary money judgment based on the Florida decree. Nor could the court have awarded alimony as in the first instance as the proceedings were not proceedings under Code § 30-202 for temporary alimony pending an action for divorce, or Code § 30-213 for alimony where no action for divorce is pending, these being the only two instances where a court can award alimony.
2. The motion to dismiss the writ of error is denied. The defendant in error's contention in support of such motion that the judgment complained of is not such a final judgment as may be reviewed by a direct bill of exceptions and that the writ is premature, is clearly without merit and requires no citation of authority. To hold as contended for would require the defendant to serve his time in jail without a remedy to review the correctness of the attachment for contempt.
The court erred in attaching the defendant for contempt.
Judgment reversed. Sutton, C.J., and Worrill, J., concur.