Cox v. Cox , 197 Ga. 260 ( 1944 )

1. The consent decree for permanent alimony entered in November, 1940, during the first or appearance term, in a suit for alimony only, was not void upon the ground that the court was without jurisdiction to render such a judgment at the appearance term, the law upon this subject having been changed by the act of 1935.

2. Nor was the decree void because it was not based upon a verdict of a jury.

3. Nor was such decree affected by the fact that on a subsequent suit by the husband against his wife, he obtained a total divorce, the wife presenting no claim for alimony in the divorce suit, and the judgment therein being silent as to such matter.

4. Under the preceding rulings, the judge did not err in dismissing the husband's response to the rule nisi for contempt, together with his motion to set aside the alimony decree; nor in adjudging him in contempt for failure to pay alimony as therein required.

No. 14711. FEBRUARY 9, 1944. Mrs. Jessie P. Cox filed in Fulton superior court, returnable to the November term, 1940, a suit against her husband, Ralph F. Cox, in which she prayed for temporary and permanent alimony and reasonable attorneys' fees. On this petition a rule nisi was issued and served. At the first term of the court a consent decree was entered as follows: "The parties hereto consenting, it is considered, ordered, and adjudged that the defendant herein, Ralph F. Cox, do pay to the plaintiff herein, Mrs. Jessie Cox, the sum of fifty dollars per month for a period of twelve months, beginning with Nov. 15, 1940; and the sum of seventy-five dollars per month for the remainder of the natural life of the plaintiff, beginning on Nov. 15, 1941. It is further ordered that the defendant do pay to the plaintiff, for the use of William T. Thurman, attorney for plaintiff, the sum of fifty dollars, as attorney's fees for the prosecution of this action. Such sums and such payments shall be in full settlement of all claims of plaintiff against defendant for alimony, both temporary and permanent. It is further ordered and decreed that all sums of money now in possession of plaintiff derived from the sale of 2265 Essex Avenue are the property of plaintiff. This the 13th day of November, 1940. Virlyn B. Moore, J. S.C. A. C. We hereby consent that the foregoing final order shall be entered at the return term of said case, to wit, the November term, 1940. Mrs. Jessie P. Cox, plaintiff. Ralph F. Cox, defendant. Robt. T. Efurd Mose S. Hayes, attorneys for defendant. William T. Thurman, atty. for pltf." Thereafter, to wit, on July 14, 1943, Mrs. Cox presented to one of the judges of the superior court of Fulton County her petition reciting the entry of the final alimony decree against her husband; that he had paid every installment except the one due July 1, 1943, and was then in arrears on payments since the last named date; that demand for payment had been made and the same refused; that the defendant was gainfully employed and financially able to pay said sums but refused to do so. She prayed that the defendant show cause why he should not be adjudged in contempt. The defendant appeared in response to the rule nisi issued upon the last mentioned petition, and also moved to vacate and set aside the decree entered on November 13, 1940. He asserted that the decree was null and void, for that the same was taken at the first term; that the court was without jurisdiction to render the same; that jurisdiction of the subject-matter could not be conferred by consent, and that said matter was not tried by a jury. He alleged also that the rule for contempt was proceeding illegally, for the reason that he, the respondent, had on January 22, 1943, filed suit against Mrs. Jessie P. Cox for divorce; that a total divorce was granted on May 7, 1943; that the jury in their final verdict did not make any award or reference to any alimony, Mrs. Cox not asking for any permanent alimony in said divorce case; and that she was therefore estopped from proceeding with the rule for contempt. The prayer was to set aside the order and decree entered on November 13, 1940, and that respondent be not held in contempt.

Mrs. Jessie P. Cox filed a written motion to dismiss the response and the respondent's motion to set aside the original alimony decree of November 13, 1940. At the hearing on the contempt proceeding, no evidence was introduced, and the presiding judge entered the following order "Under Code Sections 30-131, 30-213, 30-202, 37-1102 and 81-1003, the consent final decree of November 13, 1940 was not void for any reason assigned in the motion of July 27, 1943, filed by defendant and the same is overruled. The motion of plaintiff filed this date to dismiss the above answer and motion of defendant is sustained and said motion and answer is dismissed. Upon hearing, the motion and petition for contempt filed July 14, 1943, is granted and defendant is adjudged in contempt of court for not paying the alimony due July 1, 1943. Let the same be paid at once and all current amounts due thereafter be likewise paid as against any contention made by the pleadings. This the 11th day of August, 1943. Edgar E. Pomeroy, Judge Superior Court, Atlanta Circuit." Error is assigned on this judgment. 1. The original proceeding for alimony begun by Mrs. Cox was evidently predicated upon the provision of the Code, § 30-213, that when husband and wife shall be living separately, and there shall be no action for divorce pending the wife may institute a proceeding by petition setting forth her case; and upon three days' notice to the husband, the judge may hear the same in term time or vacation, and grant such order as he might were it based on a pending petition for divorce, to be enforced in the same manner, and so forth. Wilson v. Wilson,170 Ga. 340 (153 S.E. 9). The decree on that original petition was by consent of the parties entered in term time at the appearance term. Under the terms of the act approved March 28, 1935 (Ga. L. 1935, p. 481, Ann. Code, § 81-1003), it was provided that, "All cases, whether at law or in equity, in the courts of this State may be tried at the first or appearance term, provided the same is ready for trial, upon the consent of the parties thereto, which consent shall be entered upon the docket of the court." This was a consent decree. It was actually signed by the parties and their counsel, as well as by the judge. It is nowhere asserted that the consent of the parties was not entered upon the docket of the court, and it is to be presumed that it was. In view of the act of 1935, there is no merit in the contention that the judgment was void because it was rendered at the first or appearance term. The decisions in Kantzipper v. Kantzipper,179 Ga. 850 (177 S.E. 679), Seigler v. Seigler, 181 Ga. 310 (181 S.E. 822), Langston v. Nash, 192 Ga. 427 (15 S.E.2d 481), dealt with judgments rendered before the passage of the act of 1935, and therefore are not in point.

2. The attack upon this consent decree has also, as one of its predicates, the failure to submit the matter to a jury. It has been recognized a number of times by this court that since the parties can by agreement legally settle a claim for alimony, and the court has power to render a valid judgment thereon, such a judgment, when the amounts have been agreed upon and all issues and facts are settled, is not rendered invalid merely because the matter was not submitted to a jury. See Hardy v. Pennington,187 Ga. 523, 525 (1 S.E.2d 667); Estes v. Estes,192 Ga. 94 (14 S.E.2d 681), and other authorities there discussed. It has also been recognized that even in cases where parties may be entitled to a jury trial, they may impliedly waive it without expressly so doing. Compare Chappell v. Small,194 Ga. 143 (20 S.E.2d 916). Accordingly, the present judgment was not void because it was not based upon a verdict.

3. Another ground of attack is that the consent decree fixing the amount of alimony was rendered functus officio by the subsequent decree of divorce between the same parties. The Code, § 30-213, heretofore cited, provides for suspension of a suit for alimony based on this section, only "when a petition for divorce shall be filed bona fide by either party, and the judge presiding shall have made his order on the motion for alimony." It expressly appears in this case that the wife, when subsequently sued for divorce, did not in that suit ask for alimony, and that none was granted her. In these circumstances, it is no answer to the rule nisi for contempt, on the former husband's failure to pay alimony as called for by the consent decree, that he had in the meantime obtained a total divorce. Higgs v. Higgs,144 Ga. 20 (85 S.E. 1041); Evans v. Evans, 190 Ga. 364 (9 S.E.2d 254); Evans v. Evans, 191 Ga. 752, 755 (14 S.E.2d 95);Boone v. Boone, 192 Ga. 579 (3) (15 S.E.2d 868);Estes v. Estes, supra; Moody v. Moody, 193 Ga. 699 (5) (19 S.E.2d 504).

4. The only reasons urged by the respondent as to why he should not be adjudged in contempt were those above discussed. None being sufficient, there was no error in dismissing the response to the rule, and the motion to set aside the decree, nor in adjudging the respondent in contempt.

Judgment affirmed. All the Justices concur.