Dawson v. Dawson , 195 Ga. 289 ( 1943 )

There is no merit in an exception to a judgment as contrary to law, when, on a hearing on a rule for contempt against the former husband for refusal to pay alimony, it appeared that although the final decree in the divorce case provided for payment of $60 per month for five years, the parties made a new contract in which it was recited that notwithstanding all monthly payments had been made to that date, according to the original contract and decree of the court, the wife desired to accept a cash settlement in lieu of the extended monthly payments provided for in said decree, which new contract specified the payment of $500 in cash and the delivery to her of a promissory note for $325, the latter to be discharged by payments of $40 per month, and that in view of this new agreement she expressly released the husband from any and all further liability; and there being competent evidence before the judge to the effect that subsequently to said last agreement, the $500 specified therein having been paid, the former husband, after the maturity of the $325 note above referred to, paid to his former wife $175 in cash, which she accepted in settlement of the note, which had been misplaced or lost; whereupon, after considering the pleadings and the evidence, the judge passed orders revoking a previous order that a fi. fa. issue against defendant, finding that he was not in contempt, and ordering the rule discharged.

Judgment affirmed. All the Justices concur.

No. 14408. JANUARY 13, 1943. Pending a final verdict and judgment in a divorce and alimony case, the parties made a written contract whereby it was agreed that the amount of alimony to be paid should be $60 per month for five years. The jury on the second verdict for divorce also found in favor of the terms of that contract as to alimony; and this was incorporated in the decree, May 12, 1939. About a year later Mrs. Dawson contracted with the defendant, Paul Dawson, for a change of the terms of alimony, reciting in their written contract that all monthly payments of alimony had been made to that date, but that Mrs. Dawson desired to accept a cash settlement in lieu of the extended monthly payments provided for in the decree, and by the terms of this new contract the former husband was acquitted and released from all obligations under the original decree. This new contract provided that five hundred dollars be paid by him to her in cash, and a promissory note given by him to her for $325, to be paid at the rate of $40 per month. That contract was made the judgment of the court on May 8, 1940.

Following that judgment, over a period of more than two years, she filed several petitions alleging default in the payment of alimony, praying that the defendant be ruled for contempt, and obtained an order for the issuance of a fi. fa., and enjoining him from withdrawing funds from a bank.

On September 4, 1942, she filed another petition alleging default in the payment of the monthly amounts specified in the judgment of May 8, 1940, and that because of such default she elected to rescind that contract, and that she was entitled to rely upon the original contract and judgment for alimony as of May 12, 1939, which specified $60 per month for five years. She admitted the receipt of the $500 referred to in the contract and judgment of May 8, 1940, and alleged that she applied the $500 so paid under the second contract and judgment as payments on the original contract and judgment for alimony, and prayed that defendant be adjudged in contempt of court. The judge heard evidence and considered the pleadings; a part of this evidence being the testimony of the defendant that he paid to her $175 in cash in settlement of the note, but that the note was misplaced or lost. On October 3, 1942, the judge passed two orders, one revoking a previous order that a fi. fa. issue against defendant; the other finding that he was not in contempt of court and ordering the rule discharged. To these rulings Mrs. Dawson excepted.