Burch v. Kenmore , 206 Ga. 277 ( 1949 )

1. The motion to dismiss the writ of error is without merit.

2. "In proceedings for divorce and alimony, where after a final verdict a decree has been rendered, dissolving the marital relations between the parties and awarding alimony for the wife and stated sums for the support of the children, the decree thus rendered is final in its nature and passes beyond the discretionary control of the trial judge, and he has afterwards no authority either to abrogate it or modify its terms."

Gilbert v. Gilbert, 151 Ga. 520 (107 S.E. 490).

No. 16848. NOVEMBER 17, 1949. REHEARING DENIED DECEMBER 1, 1949. A second verdict for total divorce was returned in the case of Gladys Kenmore v. Charles Kenmore, at the May term, 1947, in the Superior Court of Sumter County. The jury granted to the defendant the right to remarry, and awarded alimony of $50 per month for the support of two minor children. A decree was duly entered awarding the custody of the children to the wife, and requiring the husband to pay $50 per month for their support.

On May 14, 1948, Charles Kenmore was adjudged in contempt of court for failure to pay the alimony fixed by the decree. He was allowed twenty days in which to pay the amount due. Before the twenty days had expired, the plaintiff and the defendant entered into an agreement pertaining to the time and method of payment of accrued alimony, which was approved by the trial judge on June 22, 1948. The contempt order of May 14, 1948, was not vacated by the order of June 22, 1948.

On June 17, 1949, Charles Kenmore filed a petition asking that the contempt order be revoked, and alleging that his former wife, Gladys Kenmore, had remarried and was preparing to take the minor children to her new home in Selma, Alabama. He asked that she be enjoined from taking the children to Alabama, that she be required to give a complete accounting as to the funds paid by the husband for the support of the children, that the custody of the children be awarded to some third person, who should be required to make a bond, and for other relief. The wife filed special demurrers to the petition, and a response.

After hearing the evidence, the trial judge passed an order which, after a factual recital, provided: "Under the present status with reference to the father paying with any degree of regularity alimony for their support, the court has no difficulty in deciding that it is to the best interest of the children for the mother to take them to their new home in Alabama, and she is permitted to do so. In view, however, of the effect her doing so has on the rights accorded the father to see said children, it is ordered and adjudged that said father be relieved of the obligation to pay accruing alimony so long as said children reside without the jurisdiction of the court. It is further ordered that the father be relieved of serving any jail sentence so long as he complies with the terms set out in his petition, filed in court June 17, 1949, until all accrued and back alimony is paid. Except as they may be sustained by the foregoing holdings, all demurrers filed by plaintiff and defendant are hereby overruled. This July 27th, 1949. Let the cost be borne equally by plaintiff and defendant."

The wife excepts to the order of the court overruling her special demurrers; to the judgment relieving the husband from the payment of alimony while the children are beyond the jurisdiction of the court; to the order relieving the defendant from the service of a jail sentence, as provided in the former orders dated May 14, 1948, and June 22, 1948; and to the order assessing one-half of the costs against the defendant. The husband did not except to the order of the trial court permitting the wife to take the minor children to her new home in Alabama. Since no exception is taken to this provision of the judgment, it can not be reviewed under the exceptions made. But see Tillinghast v. Clay, 152 Ga. 816,820 (111 S.E. 384); Jagoe v. Jagoe, 183 Ga. 273 (187 S.E. 874); King v. King, 202 Ga. 838 (44 S.E.2d 791); Good v. Good, 205 Ga. 112 (52 S.E.2d 610).

Counsel for the plaintiff in error insists that the court erred in overruling certain special demurrers to the husband's petition, it being contended that, since the husband sought to temporarily and permanently enjoin the wife from taking the children to Alabama, and sought other relief, the cause is still pending, and the relief prayed might be granted upon a further trial of the issues. The contentions made by counsel are without merit as to the ruling on the special demurrers. The husband's petition was addressed to the discretion of the trial judge, and he alone could grant or refuse the relief prayed. All questions pertaining to the custody of minor children are for determination by the judge in the exercise of a sound discretion. The determination of whether or not a husband is in contempt of court for failure to pay alimony is likewise a question addressed to the discretion of the trial judge. In neither instance will this court interfere with the discretion vested in the trial judge unless it has been manifestly abused. In this case it is not shown that the trial judge abused his discretion in modifying a previous order adjudging the husband in contempt.

The main question for determination by this court, under the record in this case, is whether or not the trial judge erred in undertaking to revise or reform the previous verdict and decree for alimony by relieving the husband from paying alimony so long as the minor children reside beyond the jurisdiction of the court. It has been held by this court many times that a verdict and decree for permanent alimony can not be revised by the trial judge. See Coffee v. Coffee, 101 Ga. 787 (28 S.E. 977);Wilkins v. Wilkins, 146 Ga. 382 (91 S.E. 415); Banda v.Banda, 192 Ga. 5 (14 S.E.2d 479); Torras v. McDonald,196 Ga. 347 (26 S.E.2d 598). The trial judge erred in that part of the order excepted to, which, in effect, revised a verdict and decree for permanent alimony.

Since both parties procured a part of the substantial relief sought by each, the fixing of costs was a matter within the discretion of the trial judge.

Judgment affirmed in part and reversed in part. All theJustices concur.