Varble v. Hughes , 205 Ga. 29 ( 1949 )

Where, in a divorce and alimony suit, by consent a final decree for permanent alimony for the benefit of minor children, which reserves no authority to modify its terms, is taken, it passes beyond the discretionary control of the trial judge; and though the father and mother subsequently agree to a change in its conditions, and a consent decree is taken in accordance with the agreement, such decree is void, as the trial judge has no authority to modify the terms of the original decree.

No. 16509. FEBRUARY 14, 1949. REHEARING DENIED MARCH 16, 1949. Mrs. Morris G. Varble, formerly Mrs. James LeRoy Hughes, brought a petition for contempt against her former husband for the nonpayment of alimony to their minor children. The petition alleged: that on May 6, 1946, a final decree was issued, awarding $50 per month alimony to the children, and custody of the children to the petitioner; that subsequently, on March 27, 1947, a consent decree was taken, which in effect eliminated the alimony to the children and provided for a change of custody of the children under certain conditions; that this second decree, dated March 27, 1947, was void and of no force and effect, as the final decree of May 6, 1946, did not reserve the right for future modification or abrogation of its terms; and that certain specified monthly payments of alimony were past due and unpaid. There were prayers, among others, that the decree of March 27, 1947, be declared void and set aside, and that the defendant be held in contempt.

Two grounds of a special demurrer, filed by the defendant father, were sustained, and exceptions pendente lite thereto filed.

Upon the hearing the following appeared: While the suit for divorce brought by the wife was pending, but prior to the final judgment and decree, an agreement was entered into and filed on the minutes of the court, in which it was agreed that the husband would pay alimony, for the benefit of the children, of $50 per month, unless his salary, which was $260 per month, should be reduced as low as $150 per month, in which event the alimony should be proportionately reduced. It was also agreed that the wife should have custody of the children, with visitation rights granted to the husband. In the verdict of the jury it was stated: "The alimony is to be reduced in proportion to reduction of salary of defendant, if it is less than $150 per month." The decree of the court, after reciting the above portion of the jury verdict, stated: "The pending application for change of the custody of minor children is not passed upon at this time, but is reserved by the court for further consideration and determination." This was dated December 10, 1945. Subsequently, on May 6, 1946, the court, by consent of the parties, entered a judgment saying: "It appearing to the court that there was heretofore entered in this case an indefinite contract and judgment for alimony, . . and [that] said judgment is a basis of much confusion. . ." The judgment then awarded $50 per month alimony for the children, and awarded their custody to the wife, with certain changes in the previous arrangements for the husband to visit the children. Again on October 2, 1946, there was another order of the judge reciting that the minor children were in the custody of the court, which custody was retained for future disposition. The order then provided that the wife should have possession of the children except for two designated periods in the year when the father should have possession of them. The last order appearing in the record, which is under attack in the instant case, was a consent judgment dated March 27, 1947. At this time the wife had remarried and her second husband was residing in Wyoming. The decree provided that, if the wife and her second husband be permitted to retain possession of the children (and take them to Wyoming), they would assume full responsibility for their maintenance and support; and that, if the father be required to maintain and support the children, he should have actual physical possession of them.

Upon the hearing the trial judge declined to hold the father in contempt of court. While, in order to state chronologically the various proceedings constituting the history of this case, much appears in reference to the custody of the children, the custody, though incidentally involved, is not the principal question for determination. The controlling question here is whether, by a consent decree, the trial court could modify the original judgment awarding permanent alimony for the benefit of the children.

Prior to the second verdict for divorce, an agreement had been placed upon the court records, in which alimony for the children had been fixed at $50 per month, unless the husband's salary, which was then $260 per month, was reduced below $150 per month, in which event the alimony award would be proportionately reduced. The jury verdict contained this provision, as did also the original judgment of the court. There is nothing in the record to show that the salary of the husband has been reduced to $150 per month, thus authorizing a modification in accordance with the terms of the original decree. The consent judgment of March 27, 1947, wherein, by agreement as to the custody of the children, it was sought to waive the permanent alimony provided for the children in the original decree, is a void judgment, as the trial judge had no authority to modify its terms. A final decree for permanent alimony, not excepted to, passes beyond the discretionary control of the trial judge; and he has then no authority to modify its terms, unless authority to do so is reserved in the decree. Coffee v. Coffee, 101 Ga. 787 (28 S.E. 977); Wilkins v. Wilkins, 146 Ga. 382 (1) (91 S.E. 415); Hardy v. Pennington, 187 Ga. 523 (1) (1 S.E.2d 667);Torras v. McDonald, 196 Ga. 347 (1) (26 S.E.2d 598);Chandler v. Chandler, 204 Ga. 40 (1) (48 S.E.2d 841). The parents themselves cannot by subsequent agreement nullify or modify the final decree so as to deprive the children of the alimony granted by the verdict and decree. Glaze v. Strength, 186 Ga. 613 (198 S.E. 721).

From the foregoing it is apparent that the father is in arrears as to the monthly alimony. Accordingly, the court erred in sustaining a demurrer to the first and third paragraphs of the petition, and in not holding the father in contempt of court.

Judgment reversed. All the Justices concur.