Charles v. Citizens & Southern National Bank ( 1969 )

Undercofler, Justice.

The Citizens & Southern National Bank of Atlanta as executor under the will of James Shelly Charles brought an action against Mrs. Alice Stone Charles in the Superior Court of Fulton County, Georgia, to modify an alimony award. The petition alleges that a divorce decree was entered on January 28, 1953, in the case of Mrs. Alice Stone Charles v. James Shelly Charles which incorporated therein a contract entered into between the parties on December 23, 1952. The contract provided that the husband would pay the wife $1,000 per month as alimony and “In the event that there should be a drastic change in the financial circumstances of the said James Shelly Charles, or in the event that there should be a drastic increase in the cost of living nationwide, then the parties shall use their best efforts to reach agreement on revised payments to be made hereunder, and if the parties be unable to agree, then the payments to be made shall be fixed by the court which tries the divorce action referred to hereinabove.” The contract also provided that the alimony payments would continue after the death of the husband. The petition alleges that at the time of the entry of the divorce decree James Shelly Charles had an income of $62,000 to $72,000 per year in addition to his income from investments and that the total income of the estate is approximately $20,000 per year. It contends that under the terms of the contract entered into between the parties, the alimony payments to the former wife should be reduced from $1,000 per month to $500 per month.

Argued July 15, 1969 Decided September 8, 1969 Rehearing denied September 29, 1969. Huie & Harland, W. Stell Huie, Pearce D. Hardwick, for appellant. Gambrell, Russell, Moye & Killorin, Charles A. Moye, Jr., Max B. Hardy, for appellee.

The defendant filed a motion to dismiss the petition on the ground that it did not set forth a cause of action against her. The trial judge overruled the motion to dismiss the petition and certified that ruling for review. Held:

An action for divorce and alimony is personal. The death of one of the parties before the decree abates the action. Thereafter the court no longer has jurisdiction to render a judgment therein. Chatsworth Lumber Co. v. White, 214 Ga. 798 (1) (107 SE2d 827). The right to apply for a modification of the alimony decree necessarily has the same characteristic as the original action and is also purely personal. Accordingly, such right does not survive the death of either party. See Harris v. Tison, 63 Ga. 629 (36 Alt 126); Elliott v. Cline, 184 Ga. 393 (191 SE 372); and Ex Parte Durden, 209 Ga. 721 (75 SE2d 548).

It follows that the petition should have been dismissed on motion of the defendant.

Judgment reversed.

All the Justices concur, except Mobley, P. J., and Felton, J., who dissent.