Under cited rulings of law, refusal to adjudge a former husband in contempt of court by failing to pay alimony under void decree was not error.
No. 13742. JUNE 16, 1941.
This is a writ of error by a former wife from a judgment refusing to hold her former husband guilty of contempt for failing to pay permanent alimony, for the reason assigned that there was no valid order under which the court had jurisdiction of the contempt proceeding. It appears from the record and the stipulation of the parties, that on August 17, 1926, the wife filed her suit for divorce and alimony, with process returnable on the 1st Monday in September, 1926; that in August, 1926, the parties made a written contract, "settling all questions of alimony, attorney's fees, and the custody of [their two] minor children," in which the wife was to have their custody, with visiting privileges to the husband, and the husband agreed to pay the wife, "for the sole support and maintenance of said two minor children," $15 on the 4th and 20th of each month for three months beginning September 4, 1926, and thereafter $20 a month on those days "until said minor children have become of age, supporting." The contract further provided that, "should any unforeseen circumstances arise between the parties, it is and shall be left in the discretion of the court as to whether or not this agreement shall be modified or canceled, as the circumstances may justify." On August 27, 1926, before the return day of the suit, an order was made that said agreement "is hereby approved by the court; . . be filed, and that the same become a part of the records and proceedings in said case." Subsequently, after two verdicts, a final decree of total divorce was entered on May 31, 1927, which made no reference to any alimony.
On January 9, 1931, the judge denied a petition by the former husband to reduce the amount of alimony as fixed by the order of August 27, 1926, without prejudice to his right to file thereafter another application to change the first order or the order last made. In August, 1932, the former wife filed a petition to adjudge the former husband in contempt, unless he paid $100, representing alimony payments due from June, 1932, under orders of the court.
The husband admitted the averments that there were such orders to make payments, but he alleged that he was financially unable to meet such requirements, and he prayed that the amounts be reduced to such a sum as he could pay and "the court deems meet and proper." On September 2 and December 1, 1932, the court denied the prayers of the wife that the husband be adjudged in contempt; and on his application, in view of a salary reduction, reduced the two monthly payments to $17 each, reserving the right to modify these orders. On February 2, 1935, the husband filed another application to further reduce these amounts, on account of a salary reduction, and on other grounds; the wife sought to have him adjudged in contempt; and on March 13, 1936, the court entered an order so adjudging him unless he paid the plaintiff $2 a week, besides the $34 a month, until he paid the $80 due on "back alimony."
On December 16, 1940, the former husband filed the instant petition to restrain the wife from proceeding under a fi. fa. for $341.16 for alleged past-due alimony, and to obtain other relief, on the ground that the original alimony judgment, based on the agreement of the parties, was void because it was entered before the appearance term. The former wife filed an answer and a cross-petition to adjudge the former husband guilty of contempt for failure to pay accrued alimony; setting up that the applications of the husband and the orders of the court since the original judgment, none of which were excepted to, constituted binding adjudications and operated as an estoppel against any right to question the validity of such judgment and orders. By demurrer, motion to dismiss, and answer, the husband attacked the cross-petition and attacked the former judgment and orders as void on the ground stated. In February, 1941, the court entered an order that the prayers of the former wife to adjudge the former husband in contempt be denied, "because the court is of the opinion that there is no valid order or judgment in said case requiring [him] to pay permanent alimony, under which the court has jurisdiction to adjudge him in contempt;" and that "the court is of the opinion that [he] is able to pay the sum stated due by him in the rule for contempt, but declines to adjudge him in contempt, for the reasons above stated."
1. The superior court is "without jurisdiction to render a judgment for permanent alimony . . before the appearance term; . . such jurisdiction [can] not be conferred by consent of the parties;" and such a judgment, "being void for lack of jurisdiction, [can] not be the basis of contempt proceedings against the defendant for failure to pay permanent alimony." Seigler v. Seigler, 181 Ga. 310 (181 S.E. 822). Until the act of 1935 (Ga. L. 1935, p. 481; Ann. Code, §§ 30-131, 30-132), which authorized all judgments in divorce cases to be taken "at the first or appearance term," and declared that such past judgments should be "legal and binding," the same as if rendered at the trial term, a judgment for permanent alimony rendered at the appearance term was likewise void; and the fact appearing on the face of the record, the decree was on its face void for want of jurisdiction of the subject-matter, and could be attacked even collaterally in any court. See Kantzipper v.Kantzipper, 179 Ga. 850, 852 (177 S.E. 679); Fleming v.West, 98 Ga. 778 (27 S.E. 157); Code, § 110-709. The present contempt proceeding involving a permanent-alimony judgment in 1926, which was rendered before the appearance term, and the acts seeking to validate only such past judgments as had been rendered "at" that term, the judgment could not be affected by the act, and was void for want of jurisdiction of the subject-matter, and could not afford any legal basis for a contempt proceeding. While this court has recognized the validity of judgments for permanent alimony based merely on agreements of the parties without embodiment in the final verdict and decree, and the power of the trial court to modify such judgments at later terms if the right to do so has been reserved therein, it has not been held that a subsequent proceeding to modify or to adjudge the husband in contempt need not be grounded on a valid original judgment. SeeHardy v. Pennington, 187 Ga. 523, 525 (1 S.E.2d 667);Estes v. Estes, 192 Ga. 94, 100 (14 S.E.2d 680, 681).
2. Jurisdiction of the subject-matter of a suit can not be conferred by agreement or consent, or consent, or be waived or "based on an estoppel of a party to deny that it exists."Parker v. Travelers Insurance Co., 174 Ga. 525, 529
(163 S.E. 159); Cutts v. Scandrett, 108 Ga. 620, 633
(34 S.E. 186); Smith v. Ferrario, 105 Ga. 51, 53 (31 S.E. 38);Watson v. Pearre, 110 Ga. 320
(35 S.E. 316); Code, § 24-112; 14 Am. Jur. 386, § 191; 21 C. J. S. 161-163, §§ 108, 109, and cit.; 15 C. J. 809, § 105. Whatever might be the rule as to res judicata or estoppel where a party has particularly invoked a decision and obtained one adverse to himself on the question of the court's own jurisdiction of the subject-matter, without excepting to such decision (see Luther
v. Clay, 100 Ga. 236, 28 S.E. 46, 39 L.R.A. 95 , AmericanGrocery Co. v. Kennedy, 100 Ga. 462, 465, 28 S.E. 241; 21 C. J. S. 177, § 115), a judgment which is void for want of jurisdiction of the subject-matter will not of itself afford any basis for applying the doctrine of res judicata. Dix v. Dix,132 Ga. 630 (3), 632 (64 S.E. 790); Cornett v. Ault,124 Ga. 944 (2) (53 S.E. 460); Barrs v. State, 22 Ga. App. 642,644 (97 S.E. 86), and cit.; 30 Am. Jur. 939, § 198. Nor will the basis of subsequent orders or proceedings on such a void judgment infuse it with a validity which it lacks. 31 Am. Jur. 91, §§ 430, 431. Accordingly, where, as in this case, a judgment for permanent alimony was void because of lack of jurisdiction of the subject-matter, "the fact that the plaintiff . . brought a petition to modify the judgment, in which he was unsuccessful, and where he filed no exception, will not create such a ratification of the judgment as will make valid that which was void." And "the fact that the [former] husband, without excepting to the original judgment, has paid alimony in pursuance of the judgment for several years can not affect the result." Jones v.Jones, 181 Ga. 747 (6), 752 (184 S.E. 271); Pace v.Berquist, 173 Ga. 112, 114 (159 S.E. 678); Haygood v.Haygood, 190 Ga. 445, 449, 451 (9 S.E.2d 834). InSeigler v. Seigler, supra, involving a like void judgment, the record shows that the husband continued to make the ordered weekly payments for nearly ten months before attacking the judgment as void in response to a contempt proceeding. Especially would there be no estoppel where, as here, there is no showing by the former wife that she suffered any injury by reason of the husband's procedure or payments under the judgment. See Code, § 38-116; Rieves v. Smith, 184 Ga. 657. 664 (192 S.E. 372), and cit.; Union Brokerage Co. v. Beall, 30 Ga. App. 748
(119 S.E. 533), and cit.; Sentinel Fire Insurance Co. v.McRoberts, 50 Ga. App. 732 (2), 737, 738 (179 S.E. 256);Franklin Savings Co. v. Branan, 54 Ga. App. 363 (4), 367 (188 S.E. 67).
3. Under the preceding rulings, the court did not err in refusing to adjudge the former husband in contempt for failing to pay permanent alimony under the void decree.
Judgment affirmed. All the Justices concur.