Opinion
33955.
DECIDED MARCH 10, 1952.
Complaint; from DeKalb Superior Court — Judge Guess. December 6, 1951.
William J. Wilkerson, Ralph R. Quillian, for plaintiff in error.
Gambrell, Harlan, Barwick, Russell Smith, James C. Hill, Charles A. Moye Jr., contra.
1. A contract providing for the wife's support, which is made after a separation has taken place, or immediately before a separation which has already been determined upon, is valid and enforceable, even though made in another State, where the same has been incorporated into the final divorce decree between the parties and made a part of such decree, which is properly authenticated under the full-faith-and-credit clause of the United States Constitution and the laws of the United States, and is attached to and made a part of the suit of the wife for past-due alimony and support payments under such decree.
2. Where the petition sets out a cause of action for past-due alimony provided for in a valid decree which is sued on, and the plaintiff substantiates the allegations thereof by competent proof, and the pleadings and evidence of the defendant fail to set forth any valid defense to such action for past-due alimony, it is not error for the court to direct a verdict in favor of the plaintiff for such amount as her evidence shows to be due by the defendant under such decree.
DECIDED MARCH 10, 1952.
In January, 1951, Helen Theresa Richards of New Mexico brought suit in the Superior Court of DeKalb County against Brinley Reese Richards, and alleged: that he was indebted to her in the sum of $5655 through January, 1951; that the plaintiff and the defendant were at one time man and wife, but were divorced in New Mexico on May 7, 1945, that, by virtue of the final decree of divorce, a property settlement which had been entered into between the parties on March 28, 1945, was made a part of such decree, and provided that the defendant pay to the plaintiff $125 monthly until she remarried, a copy of such settlement and decree, properly authenticated, being attached to and made a part of this petition; that the plaintiff has not remarried; that, pursuant to said settlement and decree, the defendant paid her certain sums until June, 1947, but owed her on the date $405; and that since then he has made no payments to the plaintiff, and is now due her as alimony on said settlement and final decree said $5655, for which she seeks judgment.
The defendant demurred to the petition, the court overruled the demurrer, and the defendant excepted pendente lite, assigning error thereon in the present bill of exceptions.
The defendant answered and denied owing said sum, but admitted that a decree of divorce had been had; and set up that said judgment and decree were not valid as a judgment in personam, in that he was not served in New Mexico and never waived service. The defendant admitted signing the settlement agreement in West Virginia, a copy of which is attached to the petition, but alleged that the same is void and contrary to public policy, in that the consideration is for the parties to live separately. The defendant admitted paying some money to the plaintiff, but denied owing her any sum or being obligated to pay her any amount. He alleged that said agreement was void and said divorce judgment and decree, embodying the same, was void, as herein set out, and that he owed the plaintiff nothing.
After the introduction of evidence, in which the divorce decree, properly authenticated, was introduced, the plaintiff testified as to the amount due to her by the defendant being unpaid and as to her being unmarried, with proof of her allegations.
The trial judge directed a verdict for the plaintiff for the full amount sued for, and to this judgment the defendant excepted directly to this court.
1. The trial court did not err in overruling the general demurrer to the petition. The contract between the plaintiff and the defendant, whereby he agreed to pay $125 a month to her until she remarried, was a valid and enforceable agreement.
A contract providing for the wife's support, which is "made after a separation has taken place, or immediately before a separation which has already been determined upon, is valid and enforceable." Sumner v. Sumner, 121 Ga. 1 (3) ( 48 S.E. 727); Barbee v. Barbee, 201 Ga. 763 ( 41 S.E.2d 126); Sells v. Sells, 206 Ga. 650 ( 58 S.E.2d 186); Code, § 30-211. This agreement was incorporated into and made a part of the final divorce decree, and became of the same force and effect as the final judgment and decree in the divorce action.
The decree was properly authenticated and attached to and made a part of the suit at law to recover thereon. In fact, it was the basis thereof. Thereunder, the plaintiff alleged that the defendant was due the amount sued for, being in arrears in that sum. The judgment or decree was entitled to be sued on in this State. U.S. Constitution, art. 4, sec. 1, Code (Ann.) § 1-401; Sistare v. Sistare, 218 U.S. 1 ( 30 Sup. Ct. 682, 54 L. ed. 905, 28 L.R.A. (NS) 1068); Barber v. Barber, 323 U.S. 77 ( 65 Sup. Ct. 137, 89 L. ed. 82, 157 A.L.R. 163); Sherrer v. Sherrer, 334 U.S. 343 ( 68 Sup. Ct. 1087, 92 L. ed. 1429). The court did not err in overruling the general demurrer to the petition. Upon proof of its allegations and the amount owing by the defendant thereon, if any, the plaintiff would be entitled to recover of the defendant under said final divorce and alimony decree of the New Mexico court.
2. The plaintiff introduced evidence tending to substantiate the allegations of her petition. She testified as to the settlement agreement and divorce decree, and she introduced in evidence the agreement and the decree in New Mexico of which the settlement agreement was a part. The same were in proper form and properly admitted. 28 U.S.C.A., Sec. 1738; Ga. Code, § 38-627.
The defendant admitted having paid some money to the plaintiff, but denied owing her any sum or being obligated to pay her any sum. He alleged that said agreement was void and said divorce judgment or decree, embodying the same, was void as herein set out, and, therefore, he owed the plaintiff nothing. He introduced no fact as to his having paid any of the sum claimed in the petition.
After the introduction of evidence, in which said final decree was introduced and the plaintiff testified as to the amount due her by the defendant being unpaid and as to her being unmarried, she testified in support of her petition.
The agreement was not illegal because contrary to public policy. See, in addition to authorities herein before cited, Watson v. Burnley, 150 Ga. 460 ( 104 S.E. 220); Chapman v. Gray, 8 Ga. 341; Melton v. Hubbard, 135 Ga. 128 ( 68 S.E. 1101); Brown v. Farkas, 195 Ga. 653 ( 25 S.E.2d 411). The contract was not void and was properly incorporated in the judgment and final decree. Besides, the defendant cannot in this action go behind the divorce decree and attack its validity nor the validity of the contract made a part thereof. The only defense the defendant could make in this case would be as to the amount he owed, if any, under said final divorce and alimony decree. The fact that such prima facie proper decree incorporated an agreement contrary to public policy would not avail the defendant in the present case, under the full-faith-and-credit clause. See Sistare v. Sistare, Barber v. Barber, Sherrer v. Sherrer, supra. The place for the defendant to attack this decree as he has attempted to do was not in this case. No proper defense to the suit appearing from the defendant's evidence, and the evidence for the plaintiff authorizing a recovery for the amount of the judgment, the court did not err in directing a verdict for the plaintiff for said sum.
Judgment affirmed. Townsend and Carlisle, JJ., concur.