Opinion
31019.
DECIDED OCTOBER 4, 1945.
Complaint; from Thomas superior court — Judge Walter Thomas Presiding. July 16, 1945.
Clifford E. Hay, for plaintiff in error.
Theodore Titus, contra.
1. In an action on a foreign judgment, praying for a judgment for unpaid installments up to the time of trial, a failure to demur is a waiver of defects in the prayers of the petition.
2. Where the foreign decree contains a judgment for alimony payable weekly, and in a separate paragraph provides that the defendant may visit the child, the right to visit the child is not a condition precedent to the obligation to pay the alimony provided by the decree for the use of the mother and child.
3. No point being made before the trial, the effort of the plaintiff to proceed as next friend of her child, in addition to proceeding in her own behalf, will be treated as surplusage, the record showing only a right to recover in the individual plaintiff.
DECIDED OCTOBER 4, 1945.
Mrs. Helen Christian Phillips filed an action in her own behalf, and as next friend and for the use of her minor son, against Clarence Eugene Phillips, to recover unpaid installments of alimony, due to the date of the trial, which had been decreed by the circuit court of Duval County, Florida, in an action for divorce and alimony by Mrs. Phillips against the defendant. The provisions of the Florida judgment pertinent to the issues here involved are as follows: "(4) That plaintiff is hereby awarded the custody of Clarence Eugene Phillips Jr., the minor son of the parties hereto, and defendant is hereby granted the privilege of visiting said minor at such times as may be reasonably convenient to plaintiff; (5) That plaintiff is hereby awarded the sum of Ten ($10) dollars per week for the support of herself and said Clarence Eugene Phillips Jr., payable by defendant on Saturday of each week, beginning June 11, 1943, and on each succeeding Saturday thereafter, until the further order of this court." The defendant filed an answer setting forth that he had paid the installments as they became due until the plaintiff wailfully and persistently obstructed his efforts to visit his son, and that his refusal to make further payments was justified by the plaintiff's refusal to abide by the terms of the decree, which the defendant contends is an entire contract. The plaintiff demurred to the answer of the defendant and the court sustained the demurrer and entered a judgment against the defendant for $630, the amount conceded to have been unpaid at the date of the trial. The defendant excepts to the direction of the verdict and to the sustaining of the demurrer to his answer.
1. The petition prayed for a judgment for installments due to the time of the trial. There was no demurrer to the petition or prayer on the ground that the installments falling due between the time of the filing of the action and the trial were not recoverable. The failure to demur was a waiver of the right to urge the point as against an exception to the directed verdict.
2. The plaintiff in error's contentions that the decree is a contract of record, and an indivisible contract, and that the defendant in error's failure to abide by its terms relieves him of his obligations thereunder, are not well founded. It is true that the action is denominated as one ex contractu, and in some cases has been called a contract of record. The Code, § 20-103, provides: "A contract of record is one which has been declared and adjudicated by a court having jurisdiction, or which is entered of record in obedience to, or in carrying out, the judgments of a court." Under no view is the judgment a contract of record under this section. Such a judgment, not based on a contract, "is not a contract in the strict sense of the term or in the ordinary sense of an agreement reached between persons, to the terms of which their mutual assent has been given, because usually the defendant has not voluntarily assented." 30 Am. Jur. § 145, pp. 896-7. Therefore the rule applying to indivisible voluntary contracts does not apply. Whatever may have been held in other jurisdictions, the Supreme Court of Georgia has held that in such a decree as is here involved the provision for the payment of alimony and the provision for the father's visitation of the child are distinct and not dependent one on the other, and that the right of visitation is not a condition precedent to the obligation to pay alimony. Jagoe v. Jagoe, 183 Ga. 273 ( 187 S.E. 874). It follows that the mother's wilful prevention of visits to the child by the father does not affect her right to recover the alimony ordered to be paid.
3. The only right of action under the record being solely in the plaintiff, Mrs. Phillips, and no point having been made as to her effort to sue as next friend for the child, the effort to proceed as next friend will be treated as surplusage. The verdict and judgment in favor of the plaintiff are construed to mean Mrs. Phillips.
The court did not err in sustaining the demurrer to the defendant's answer, and in directing the verdict for the plaintiff.
Judgment affirmed. Sutton, P. J., and Parker, J., concur.