Opinion
35321.
DECIDED OCTOBER 25, 1954.
Complaint. Before Judge Shaw. Fulton Superior Court. May 20, 1954.
Sam G. Dettelbach, for plaintiff in error.
Howard, Howard, Slaton Holt, contra.
1. The special grounds are incomplete and insufficient within themselves and, therefore, are not considered by this court.
2. The court did not err in denying the motion for a new trial on the general grounds.
DECIDED OCTOBER 25, 1954.
Ethel Grady Mylius (whom we shall call the plaintiff), a resident of Fulton County, brought a petition against Fred G. Mylius, Sr. (whom we shall call the defendant), who was also a resident of Fulton County.
Paragraph 2 of the petition reads: "On May 31, 1946, petitioner and defendant herein executed a separation agreement, a copy of said contract being attached hereto and incorporated herein and marked `Exhibit A.'" "Exhibit A" is the separation agreement, which reads as follows: "State of South Carolina, County of Richland: This agreement made this 31st day of May, 1946 by and between Fred G. Mylius, Sr., party of the first part, and Ethel G. Mylius, the wife of Fred G. Mylius, Sr., the party of the second part. Whereas, Fred G. Mylius, Sr. and Ethel G. Mylius are now living separate and apart and desire to enter into an arrangement for the future, it is agreed:
"1. That beginning June 1, 1946 Fred G. Mylius, Sr., will pay to Ethel C. Mylius the sum of one hundred ($100) dollars per month which sum of money is to take care of the support and maintenance of herself and the further sum of seventy-five ($75) dollars per month for the support and maintenance of Fred G. Mylius, Jr. Fred G. Mylius, Sr., agrees to pay any dental or medical expense for Ethel C. Mylius or Fred G. Mylius, Jr., so long as Ethel C. Mylius remains unmarried and until Fred G. Mylius, Jr., becomes of age or marries before reaching the age of twenty-one (21) years.
"2. Fred G. Mylius, Sr., is to provide a college education for Fred G. Mylius, Jr., it being contemplated that upon his graduation from high school, he will attend college.
"3. The custody of Fred G. Mylius, Jr., shall be with Ethel C. Mylius, with the provision, however, that Fred G. Mylius, Sr., shall have the right to see his son, Fred G. Mylius, Jr., at such times as will not interfere with his studies and Fred G. Mylius, Sr., shall be entitled to take his son on vacations if agreeable and convenient to both parties.
"4. If Ethel C. Mylius, remarries at any time after the signing of this agreement, then Fred G. Mylius, Sr., agrees only to support and maintain his son, Fred G. Mylius, Jr., until he becomes of age. During the time Fred G. Mylius, Jr., is a minor and attending college or a preparatory school outside of Richland County, South Carolina or not living with his mother, then the allowance for his support and maintenance shall be paid direct to the said college or preparatory school. In the event Fred G. Mylius, Jr., joins a branch of the armed forces of the United States, then any support for himself shall be stopped and also in the event he marries before he becomes of age and lives with or without his mother, then such support for him shall cease. In the event Fred G. Mylius, Jr., attends the University of South Carolina and lives with his mother in Columbia, then the allowance of $75 for his support shall be continued plus his tuition, books and incidental expenses at the University of South Carolina.
"5. Fred G. Mylius, Sr., and Ethel C. Mylius own jointly the house and lot at 3905 Trenholm Road in the City of Columbia on which there is a mortgage of approximately $3900 and out of said allowance to Ethel C. Mylius, she is to pay the monthly instalments of interest and principal which payments include insurance and taxes. It is further agreed that Ethel C. Mylius shall be permitted to occupy the said house at 3905 Trenholm Road so long as she remains unmarried without payment of rent to Fred G. Mylius, Sr., however if she remarries or ceases to live in said house, then the mortgage indebtedness is to be paid out of the rental and the net proceeds, if any, are to be divided equally between Fred G. Mylius, Sr. and Ethel C. Mylius.
"6. In the event both parties to this agreement consent to sell the house at 3905 Trenholm Road, then the net proceeds shall be divided equally between Fred G. Mylius, Sr., and Ethel C. Mylius.
"7. This agreement is predicated upon the salary which Fred G. Mylius, Sr., is now earning less income taxes, and in the event Fred G. Mylius, Sr., loses his health and is unable to work or should he cease to earn approximately $500 per month, then an adjustment as to support and maintenance will be made between the parties in accordance with the income of Fred G. Mylius, Sr.
"Witness our hands and seals the date above written.
"Fred G. Mylius (Seal) Party of the First Part "Ethel C. Mylius (Seal) Party of the Second Part." The instrument was properly witnessed.Paragraph 3 of the petition alleges: "On February 18, 1947, said contract was made the judgment of the Circuit Court of Florida, 8th Judicial Circuit, in and for Alachua County, and settled all questions of custody, support and alimony in a suit for divorce then and there pending, a copy of said judgment and decree being attached hereto and incorporated herein and marked `Exhibit B'". Exhibit B is the final decree and reads as follows: "This cause coming on to be heard before this court, upon motion, for the entry of a final decree, the court having before it the records and files, there having been heretofore appointed a special master in chancery to serve in this cause, and the special master's report having been filed herein, and this court being fully advised in these premises, and this court having complete and full jurisdiction of all parties to this cause of action, it is therefore:
"Ordered, adjudged and decreed, that an absolute divorce, a vincula matrimonii, be and is hereby granted to the plaintiff, Fred G. Mylius, Sr., of and from the defendant, Ethel Clara Grady Mylius, and by this decree, an absolute divorce, a vincula matrimonii, be and is hereby granted, to the defendant, Ethel Clara Grady Mylius, of and from the plaintiff, Fred G. Mylius, Sr., it is further:
"Ordered, adjudged and decreed, that the agreement and stipulations made and entered into by and between the parties to this cause of action be and the same is hereby made a part of this decree by reference only, the same as if it were set forth in full herein.
"Done and ordered, adjudged and decreed, in the City of Starke, County of Bradford, State of Florida, this 18th day of February, A. D. 1947." This was signed by a circuit court judge of Florida.
Subsequent paragraphs of the petition read: "4. That under paragraph 1 of said contract which was made the judgment of the court as beforesaid, the defendant herein, Fred G. Mylius, Sr., was obligated to pay petitioner the sum of $100 per month as alimony for the support and maintenance of herself. 5. Petitioner shows that defendant herein has failed to make said payments, the last payment having been made for October, 1948. 6. Petitioner shows that she has not remarried. 7. Petitioner shows that no re-adjustment has been made with regard to said payments as provided in paragraph 7 of said contract herein referred to.
"Wherefore, petitioner prays: (a) That process issue in terms of law. (b) That she have judgment against defendant for $5,300, [changed by amendment to $6,100] plus interest and cost of suit."
The defendant filed his answer as follows: "2. Defendant denies the allegations of paragraphs three (3), four (4), and five (5) of plaintiff's petition and demands strict legal proof of each and every part and portion of said paragraphs.
"3. For want of sufficient information, this defendant can neither admit nor deny the allegations of paragraphs six (6) and seven (7) of plaintiff's petition and demands strict legal proof of each and every portion of said paragraph.
"4. For further plea and answer, defendant shows that any provision for permanent alimony which may have been due plaintiff has been annulled and set aside by the subsequent voluntary cohabitation of plaintiff and defendant, formerly husband and wife, which subsequent cohabitation did take place in Atlanta, Georgia in June, 1952.
"5. Defendant shows that the agreement between the parties, (Exhibit A) was signed May 31, 1946, but that there was no separation, and the parties proceeded to cohabit as husband and wife, and in the same residence until November 11, 1946.
"6. Defendant shows that it is against public policy to enforce a `contract of separation' entered into prior to `final separation', and which was alleged to be operative during the said cohabitation.
"7. Defendant shows that he has not been credited with the sum of $1,000 cash, and automobile of value of $1,775, delivered to plaintiff in November, 1946, and is entitled to such credit should plaintiff's petition be allowed to prevail. Defendant shows that plaintiff has never paid defendant nor accounted for rental upon the residence in Columbia, South Carolina, and defendant is entitled to such credit should plaintiff's petition be allowed to prevail.
"8. Defendant shows that there has been a mutual rescission of the contract, in that the plaintiff and defendant did agree in October, 1948, that no further payments would be made by defendant to plaintiff for plaintiff's support, which agreement and rescission was made and entered into at Columbia, South Carolina.
"9. Defendant shows that plaintiff has lived in Atlanta, Georgia, since 1950 and has known of defendant's employment and his whereabouts, but has made no request for support or maintenance.
"10. In the winter of 1951, defendant and plaintiff attended church together with their son, then twenty-one (21) years old, and no mention was made of any claim nor indebtedness under any contract, affirming the mutual rescission.
"11. In the spring of 1952 during the time of the marriage of the son of plaintiff and defendant, plaintiff mentioned to defendant certain expenditures on furniture for their son, and when defendant offered plaintiff financial assistance, plaintiff refused, saying she would not think of accepting money from defendant, affirming the mutual rescission.
"12. In the spring of 1952, as alleged, after plaintiff had mentioned expenditures for furniture, defendant tendered a check and plaintiff tore the check to pieces, stating in a friendly manner that she did not even want to see the amount of the said check.
"13. Defendant shows that the plaintiff is an able-bodied woman, regularly employed and does own a home in Ansley Park in Atlanta, Georgia, worth approximately twenty-one thousand ($21,000) dollars, which residence has a rental income of $235 per month, and that plaintiff received the sum of six thousand six hundred ($6,600) dollars net for herself from the sale of the family residence in Columbia, South Carolina.
"14. Defendant shows that he fully complied with the provisions of his agreement as to the support and education of his minor child, and during the calendar years 1948 through 1951 a sum in excess of $6,822.50, and plaintiff knew of such expenditures and knew that defendant could not and would have had to hesitate to make these expenditures for their child had there not been the mutual rescission of contract as alleged by this defendant.
"15. Defendant has as dependents, in addition to himself, his mother and brother, all of which was and is known to plaintiff, which knowledge, in part, motivated the alleged mutual rescission.
"16. Plaintiff and plaintiff's sister are or will be the sole heirs to property worth in excess of $40,000, having an income of approximately $8,000 per year, same being known to plaintiff, which knowledge, in part, motivated the alleged mutual rescission."
After the evidence had closed, on motion of the plaintiff, the court directed a verdict for her in the sum of $5,100, and judgment was entered accordingly. The defendant filed a motion for new trial on the usual general grounds and thereafter by amendment added several special grounds, as follows: "5. Because the court refused to allow defendant to introduce evidence and testimony of voluntary cohabitation and resumption of cohabitation after the date of the alleged divorce between the parties.
"6. Because the court refused to allow defendant to introduce evidence and testimony of voluntary cohabitation and resumption of cohabitation after the date of the divorce, though the said voluntary cohabitation and resumption of cohabitation was alleged in defendant's answer and such allegations were not demurred to or otherwise objected to nor stricken.
"7. Because the court refused to allow defendant to testify to and introduce evidence tending to show that subsequent to the divorce and subsequent to the alleged mutual rescission of the contract for support of plaintiff and their minor son, defendant expended the sum of $6,822 for the support of his said son, all with plaintiff's knowledge and consent, though under the said agreement defendant was obligated to pay only the sum of $2,700.
"8. Because the court refused to allow defendant to testify to and introduce evidence tending to show that subsequent to the divorce and subsequent to the alleged mutual rescission of the contract for support of plaintiff and their minor son (during the 3 years 1948-1951), defendant expended the sum of $6,822 upon support of her said son, all with plaintiff's knowledge and consent, though under the said agreement defendant was obligated to pay only the sum of $2,700, though such allegations were alleged in defendant's answer and were not demurred to or otherwise objected to nor stricken.
"9. Because the court erred in refusing to allow defendant to testify that subsequent to the alleged mutual rescission of the alimony contract, he acted upon the said mutual rescission to his own loss in the sum of $4,100 in excess payments for the support of his child, within the knowledge and consent of the plaintiff; and defendant avers that plaintiff, having so allowed defendant to make such excessive expenditures not called for nor required by his contract is now estopped from denying the alleged mutual rescission.
"10. Because this court should have submitted to the jury's consideration and determination defendant's defense of subsequent cohabitation as alleged in defendant's answer.
"11. Because the court should have submitted to the jury's consideration and determination defendant's defense of mutual rescission of the contract sued upon, as alleged in defendant's answer."
The court denied the motion as amended. On this judgment the movant assigns error.
The evidence shows substantially that in support of her contention the plaintiff testified: On direct examination she identified the contract and decree, and testified substantially that the defendant paid her $100 for herself and $75 for their child until October 1948; that no payments were made for herself since 1948, and the defendant owed her the $6,100 sued for because of his failure to pay alimony payments for her own support since October 1948.
On cross-examination, the plaintiff testified that she was employed and earned $50 per week, and owned her home on Montgomery Ferry Drive; that her former husband had sent their child through Emory University after October 1948, and that the child's support and education had cost considerably more than $75 per month.
She testified that she had received $1,000 from Mr. Mylius (which sum was credited and deducted before the court directed the verdict.)
The defendant testified that he had a discussion with his wife and reminded her of their understanding that she was to receive alimony until she was "on her feet financially," and further that the defendant asked her in October 1948 if she was "getting married," and she answered that she was; they had a discussion to the effect or conclusion that her remarriage would terminate the alimony payments for herself; and, as he testified, "We had the agreement in November after the October payment was made in 1948."
The plaintiff testified with regard to contacting a law firm in 1950, her only efforts to collect, though she knew of the place of employment and residence of the defendant, and on occasion went to church with him. She further testified that she brought this action in March, 1953, after the defendant had contracted a marriage to another lady in December, 1952; and testified as to the financial arrangements made concerning the Columbia residence, and that she and her sister were heirs to an estate bringing in an income of $5,000 per year.
The defendant testified as to the circumstances surrounding the discontinuance of the alimony payments.
We may further state in regard to the evidence that it was to the effect that the parties procured a divorce in the courts of Florida, and that in the agreement the defendant provided for a college education for the son, `Fred G. Mylius, Jr., and further provided for medical and dental expenses for the son until he reached the age of twenty-one years.
1. We will deal first with the special grounds, since the overruling of these special grounds to a large extent clarifies, if it does not wipe out, the contentions of the defendant on the general grounds. We have heretofore set out in full the special grounds and in our opinion they speak for themselves to the following effect: Special ground 1 (numbered special ground 5 by counsel for the defendant) does not show that any evidence was tendered by the defendant and, if so tendered, what it consisted of and what ruling was made thereon and how such ruling affected said case.
Special ground 2 (numbered 6) fails to show what evidence was offered, if any, the court's ruling thereon, the perfection of the record and how it would benefit the complaining parties.
Special ground 3 (numbered 7) fails to show that evidence was offered, the court's ruling, the statement made as to answer expected, and how such evidence would benefit the defendant.
Special ground 4 (numbered 8) fails to show what evidence was offered, if any, the court's ruling thereon, what the answer would have been and how it would benefit the defendant.
Special ground 5 (numbered 9) fails to show what evidence was offered, if any, the court's ruling thereon, what the answer would have been, and how it would benefit the defendant.
Special ground 6 (numbered 10) fails to show what evidence the defendant offered, the court's ruling thereon, what the answers would have been, how same was material, and in what manner the testimony would be beneficial to the defendant.
Special ground 7 (numbered 11) fails to show that evidence the defendant offered, the court's rulings thereon, how same was material, what the answer would have been, and how same would be to the defendant's benefit.
The special grounds are incomplete and insufficient within themselves, and therefore are not considered by this court. See Barron v. Barron, 185 Ga. 346 ( 194 S.E. 905), and citations therein. The court did not err insofar as this record is concerned in denying the amended motion for a new trial.
2. We will now consider the general grounds. The case of Ford v. Ford, 203 Ga. 681 ( 47 S.E.2d 865) holds: "The grounds of the motion for new trial, as amended, in substance state that the verdict was contrary to law, against the weight of the evidence, and contrary to law and to the principles of justice and equity. None of the grounds raises the point that the direction of the verdict was erroneous because there were questions of fact which should have been submitted to the jury. It follows that no such question is presented here for decision, and the judgment of the trial court must be affirmed, since the verdict, as directed, is not without evidence to support it. Hightower v. Hightower, 159 Ga. 769 (9) ( 127 S.E. 103); Gilliard v. Johnston Miller, 161 Ga. 17 ( 129 S.E. 434); Morris v. First National Bank of Vidalia, 174 Ga. 848 ( 164 S.E. 200)." No special point has been raised in this case by any special grounds. This leaves us with the sole question: is there any evidence to support the verdict? If there is (and we hold that there is), we are without authority to disturb the verdict as to the general grounds. The defendant in this connection calls our attention to Code § 30-217, which reads: "The subsequent voluntary cohabitation of the husband and wife shall annul and set aside all provision made, either by deed or decree, for permanent alimony. The rights of children under any deed of separation or voluntary provisions or decree for alimony shall not be affected thereby."
The defendant contends that the cohabitation of the plaintiff and the defendant voided the final decree for alimony. This question is not properly before us. See ruling regarding the special grounds.
As to the proposition concerning the rescission of the agreement, argued by the defendant, the rule is that, while a contract remains executory on both sides, an agreement to annul on one side is a sufficient consideration for the agreement to annul on the other side. Where a contract has been partly executed on one side, other consideration is necessary. We have before us here an executed contract on the part of the plaintiff which leaves liability on the defendant. He cannot be relieved in the absence of consideration on his part. This record reveals no consideration to sustain the contentions of the defendant. Our attention is called by the defendant to Dyal v. Dyal, 65 Ga. App. 359 ( 16 S.E.2d 53). That case has no application to the facts of the instant case, nor do the following cases apply: Smith v. Folsom, 190 Ga. 460, 472 ( 9 S.E.2d 824); Bragan v. Lumbermen's Mutual Cas. Co., 59 Ga. App. 862 ( 2 S.E.2d 189); Anderson v. Mechanics Loan c. Co., 58 Ga. App. 147 ( 198 S.E. 87); Smith Jones, 185 Ga. 236 ( 194 S.E. 556); Osborn v. Elder, 65 Ga. 360, 364; Burruss-Manley Co. v. Lewis, 11 Ga. App. 731 ( 76 S.E. 70); Sovereign Camp W.O.W. v. Heflin, 59 Ga. App. 299, 304 ( 200 S.E. 489); U.S. Casualty Co. v. Smith, 34 Ga. App. 363, 367 ( 129 S.E. 880); Chandler v. Griffin, 132 Ga. 847 ( 65 S.E. 128); Hamby v. Pye, 195 Ga. 366 ( 24 S.E.2d 201).
The court did not err in denying the motion for a new trial on either the general or the special grounds.
Judgment affirmed. Townsend and Carlisle, JJ., concur.