Allen v. Withrow , 215 Ga. 388 ( 1959 )

215 Ga. 388 (1959) 110 S.E.2d 663

ALLEN
v.
WITHROW.

20622.

Supreme Court of Georgia.

Argued September 15, 1959. Decided October 9, 1959.

Jack G. McKay, Nelson C. Coffin, for plaintiff in error.

Bass H. Lewis, Jr., contra.

HEAD, Justice.

A contract between a husband and wife made with the intention of promoting a dissolution of the marriage relation existing between them is contrary to public policy and is illegal and void. Birch v. Anthony, 109 Ga. 349 (34 S.E. 561, 77 Am. St. Rep. 379); Powers v. Powers, 158 Ga. 251 (123 S.E. 220); Law v. Law, 186 Ga. 113, 116 (197 S.E. 272). But where, as in this case, the husband and wife were living in a state of separation, and the wife was suing the husband for divorce and alimony, they could enter into a valid and enforceable contract settling the issue as to alimony. Chapman v. Gray, 8 Ga. 341; McLaren v. McLaren, 33 Ga. (Supp.) 99; Sumner v. Sumner, 121 Ga. 1 (3) (48 S.E. 727); Watson v. Burnley, 150 Ga. 460, 463 (104 S.E. 220); Gore v. Plair, 173 Ga. 88 (159 S.E. 698); Sells v. Sells, 206 Ga. 650 (58 S.E.2d 186).

Counsel for the plaintiff in error (the former husband) cite and rely upon White v. Murden, 190 Ga. 536 (9 S.E.2d 745), which was not a full-bench decision, two Justices dissenting, and the decision in that case did not give effect to the facts set forth. It appears that a lump-sum award was made by the jury, payable in monthly installments. In Brown v. Farkas, 195 Ga. 653 (4) (25 S.E.2d 411), Mr. Presiding Justice Bell, speaking for a full bench, pointed out that White v. Murden, supra, "did not expressly rule upon the significance or effect of the lump-sum awards," and stated that, if the ruling in White v. Murden was in conflict with the ruling in Brown v. Farkas, supra, it would not be followed, the effect of lump-sum settlements being controlled by the unanimous decision in Melton v. Hubbard, 135 Ga. 128 (68 S.E. 1101).

In Green v. Starling, 203 Ga. 10 (45 S.E.2d 188), at page 14, it was pointed out that the verdict in White v. Murden, 190 Ga. 536, supra, was rendered by consent of the parties, and the record shows that it was a consent verdict, approved in writing and signed by both parties and their counsel. "A decree rendered in accordance with a consent verdict, though it may not be valid as a judgment of the court, will, in the absence of fraud, accident, or mistake, be operative as an agreement binding upon all the parties thereto." Driver v. Wood, 114 Ga. 296 (40 S.E. 257); Kidd v. Huff, 105 Ga. 209 (31 S.E. 430); Sapp v. Williamson, 128 Ga. 743, 750 (58 S.E. 447); Wilbanks v. Wilbanks, 159 Ga. 196 (125 S.E. 202); Lunsford v. Kersey, 191 Ga. 738, 744 (13 S.E.2d 803); Estes v. Estes, 192 Ga. 94 (14 S.E.2d 681); Bedenbaugh v. Burgin, 197 Ga. 175, 180 (28 S.E.2d 652); Gaither v. Gaither, 205 Ga. 572 (54 S.E.2d 600); Fowler v. Fowler, 206 Ga. 542 (57 S.E.2d 593); Gaither v. Gaither, 206 Ga. 808, 812 (58 S.E.2d 834); Lewis v. Lewis, 213 Ga. 856 (102 S.E.2d 559).

The statement of the court in White v. Murden, 190 Ga. 536, supra, that "Our conclusion is that an allowance of money in a decree for divorce and alimony, made purely for the use of the wife and payable in monthly installments, ceases upon her remarriage," is in conflict with both our statutory law and the decisions of this court.

"A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code § 110-501. "A judgment of a court having jurisdiction of both the parties and the subject-matter, however irregular or erroneous, is binding until set aside." Mitchell v. Arnall, 203 Ga. 384 (4) (47 S.E.2d 258); Rozetta v. Rozetta, 181 Ga. 494 (182 S.E. 847); Sumner v. Sumner, 186 Ga. 390 (2) (197 S.E. 833); Manry v. Stephens, 190 Ga. 305 (9 S.E.2d 58).

In the present case, the parties having entered into a valid contract, which might have provided that it was to terminate upon the remarriage of the wife, but which did not so provide, and the contract having been made the judgment of the court, and it appearing that the court had jurisdiction of both the parties and the subject matter, the judgment is binding and enforceable until modified (see Ga. L. 1955, p. 630; Code, Ann., § 30-220), vacated, or set aside.

Judgment affirmed. All the Justices concur.