Opinion
18177.
ARGUED APRIL 14, 1953.
DECIDED MAY 12, 1953.
Alimony; contempt. Before Judge Whitman. Fulton Superior Court. December 24, 1952.
John Tyler, Swift Tyler and Marvin O'Neal Jr., for plaintiff in error.
Alton T. Milam, Ward Matthews Jr., Thomas M. Stubbs Jr., and Thomas D'Alessio, contra.
1. Generally, if the testimony of a plaintiff is vague, uncertain, and contradictory, it should be construed most strongly against him.
2. In the present case, however, another equally well-established rule is applicable to the judgment under review. In all cases involving an alleged failure to pay alimony, the issue is one of fact, and the findings of the trial judge will not be controlled by this court unless it appears that there is no evidence to support the finding. Greenway v. Greenway, 147 Ga. 503 ( 94 S.E. 885); King v. King, 170 Ga. 291 ( 152 S.E. 574); Townsend v. Townsend, 205 Ga. 82 ( 52 S.E.2d 324).
3. The husband's testimony clearly established the fact that he had not complied with the previous order of the court, and the judgment of the trial judge holding him in contempt is not erroneous for any reason assigned.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
No. 18177. ARGUED APRIL 14, 1953 — DECIDED MAY 12, 1953.
Mrs. Ruth Harris filed a petition in the Superior Court of Fulton County against L. Jerome Vogt, and in substance alleged: On November 27, 1946, the defendant by decree of the court was ordered to pay $100 a month for the support of each of their two children, until each child becomes 21 years of age, dies, or marries. The defendant has failed and refused to abide by the court's order, and is in arrears in the sum of $6400. The defendant owns his own business, and his failure to abide by the court's order is wilful and he should be punished for contempt. She prayed that rule nisi be issued, that upon the hearing the defendant be confined in the common jail until he purges himself of contempt by complying with the court's previous decree, and that she be awarded attorney's fees for bringing the citation.
Upon the hearing the plaintiff testified that the former husband had failed to make certain alimony payments, and on cross-examination she stated that, as near as she could figure, he owed approximately $6400. Counsel for the defendant tendered in evidence eighteen checks, each in the sum of $100, and the plaintiff admitted on cross-examination that, obviously, her contention that the defendant owed $6400 was not correct. At the conclusion of her evidence, counsel for the defendant made a motion for dismissal in the nature of a nonsuit. The court permitted the case to be reopened and the former husband called for the purpose of cross-examination. He testified as to having made certain payments, but did not claim to have made all payments required under the decree. On the contrary, he testified in part:
"I recognize that there are sixteen of those months at $200 per month, making a total of $3200 that I have failed to pay that I was ordered to pay Mrs. Harris under the decree of this court. Not including December; 1951, that makes a total of $3000 that I have failed to pay between September, 1951, and November, 1952, both months inclusive. From the month of May, 1950, through August of 1951, I have paid only the sum of $100 per month, as I understood the decree to be, on the decree for a period of sixteen months, or a total of $1600, leaving $1600 that remains unpaid and due under the decree. I do recognize that there is $1600 that I have failed to pay under the order of court for those sixteen months. If there are fifteen months at $200 per month and sixteen months at $100 per month, that apparently would make a total of $4600."
At the conclusion of the hearing, the judge passed an order finding that the defendant had failed to pay $4400, and that he might purge himself of contempt by paying $100 per month on the first day of each month, and in default thereof, be confined in the common jail. The exception is to that order.