Summary
In Roberts v. Mandeville, 217 Ga. 90 (121 S.E.2d 150), it was held: "In a contempt case filed by the mother of three children on the ground that the father had failed to pay alimony for their support, the trial judge may not modify the original decree by allowing the father to pay a lesser sum in complete satisfaction of a total amount, due and in arrears and required by the mandate of a previous decree.
Summary of this case from Anderson v. AndersonOpinion
21275.
ARGUED JUNE 12, 1961.
DECIDED JULY 6, 1961.
Alimony, etc. Carroll Superior Court. Before Judge Knight.
O. W. Roberts, Jr., for plaintiff in error.
Gilbert Head, contra.
In a contempt case filed by the mother of three children on the ground that the father had failed to pay alimony for their support, the trial judge may not modify the original decree by allowing the father to pay a lesser sum in complete satisfaction of a total amount, due and in arrears and required by the mandate of a previous decree. For, after a decree for permanent alimony has become absolute, there is no authority given under the law by which a trial court is empowered to abrogate or modify the obligation imposed by the decree, unless such a right has been reserved by consent of the parties in the final decree itself, or an action is brought as provided under Code Ann. §§ 30-220 through 30-225.
ARGUED JUNE 12, 1961 — DECIDED JULY 6, 1961.
On April 6, 1956, in the divorce case pending between Mrs. Ann B. Mandeville and John A. Mandeville, a final decree dissolved the marital relationship and ordered Mr. Mandeville to pay as permanent alimony $50 per month for the support of each of the parties' three minor children, until each child married, reached majority, or became self-supporting. The decree did not reserve in the court the power to modify, alter, or revise its mandate in any respect.
Subsequently to the rendition of the divorce decree, Mrs. Mandeville married a Mr. Roberts. On March 21, 1961, Mrs. Roberts filed in Carroll Superior Court a petition praying that Mr. Mandeville be cited and punished for contempt of court on account of his failure to obey the divorce and alimony decree of April 6, 1956, in that he had fallen $1,400 in arrears in the payments of alimony required by the decree to be paid for the support of the children. A rule nisi, calling upon him to show cause why he should not be adjudged in contempt, was served upon him.
The case came on for trial, and it was stipulated by counsel representing plaintiff and defendant, in open court, that the amount of support in arrears for the three minor children, due and owing by the defendant, was $1,400 through the month of March, 1961. Defendant Mandeville filed no pleadings, but appeared and testified substantially as follows: The amount of alimony-support payments due and owing was $1,400, and that he fell behind in making said payments because of unemployment. He stated that he had not been regularly employed during the period of time in which said payments accrued. He further testified that, although he was now employed by the Credit Bureau of Carrollton, owned by his present wife, his income from such employment was neither regular nor steady; some months he made $150 and some months he did not. He stated that on several occasions he had to borrow the money with which to make the monthly support payments, and he had not been able to make the March payment at all. He further testified that $600 was all the money he could raise at the present time, and that he had made an offer to pay this amount, which was not accepted. He stated that he was financially unable to continue to make the monthly payment previously ordered by the court, and although he had talked to a bank about a loan, all they would let him have was $600.
Under cross-examination, the defendant testified that he held an executor's deed to a house and lot in Carrollton, Georgia, which property was valued at $25,000; that this house had been his mother's home place, and it was involved in her estate; and that until his mother's estate had been closed out, he could not sell or dispose of it. He also testified that he owned corporate stocks, but did not know how many shares or their value. He stated that he received dividends on this stock.
Upon the conclusion of the evidence, the judge entered the following judgment: That the defendant Mandeville was in contempt of court for non-payment of alimony; that he might purge himself by paying $600 as payment in full of all sums he was in arrears as of March 31, 1961; and that he pay the attorney's fees of the plaintiff for bringing the contempt proceeding.
To this judgment the plaintiff excepts because it in effect modifies and alters a divorce and alimony decree previously entered between the plaintiff and the defendant, which fixed the amount of permanent alimony the defendant must pay for support of the minor children of the marriage.
Where a father has been required by a final decree in a divorce case to pay a designated amount periodically as permanent alimony for the support of the minor children of the marriage, he may in a proper action brought under Code Ann. §§ 30-220, 30-221, 30-222, 30-223, 30-224, and 30-225 (Ga. L. 1955, pp. 630-632, as amended by Ga. L. 1957, pp. 94-96), show that his financial condition has changed, and obtain a judgment decreasing the amount he must pay. However, until and unless such proceedings are instituted conformant with the provisions of Code Ann. § 30-220, supra, the original permanent-alimony decree is res judicata as to the amount the father must pay for the support of the children.
On the hearing of a contempt case filed by the children's mother on the grounds that the father has failed to pay the alimony for their support as required by a previous divorce and alimony decree, if such former decree did not reserve such authority in the judge, the rule is as stated in Banda v. Banda, 192 Ga. 5, 6 ( 14 S.E.2d 479): "After a decree for permanent alimony has become absolute, there is no authority given under the law by which a trial court is empowered to abrogate or modify the obligation imposed by the decree, unless such a right has been reserved by consent of the parties in the final decree itself." Hardy v. Pennington, 187 Ga. 523, 525 ( 1 S.E.2d 667); Breen v. Breen, 208 Ga. 767 ( 69 S.E.2d 572). For the evolution of this doctrine, see similar holdings in: Wilkins v. Wilkins, 146 Ga. 382 ( 91 S.E. 415); Gilbert v. Gilbert, 151 Ga. 520 ( 107 S.E. 490); Deaderick v. Deaderick, 182 Ga. 96, 97 ( 185 S.E. 89); and Fricks v. Fricks, 215 Ga. 137 ( 109 S.E.2d 596).
The judgment assigned as error in this case did not merely permit the defendant presently to purge himself of contempt by paying an amount less than he was obligated to pay under the previous decree. It went further and undertook to modify the previous decree by allowing the defendant to pay $600 in complete satisfaction of $1,400 then in arrears and required by the mandate of the former decree.
For this reason, the judge erred in entering the judgment, and his ruling so far as it related to the reduction of the alimony the defendant must pay for the support of the children must be reversed. However, the adjudication that the defendant was in contempt was demanded by the evidence and therefore will not be disturbed.
Judgment affirmed in part and reversed in part. All the Justices concur.