Waldron v. Waldron , 138 Ga. 788 ( 1912 )

Beck, J.

(After stating the facts.) We are of the opinion that the court below was authorized, under the pleadings and evidence in this case, in refusing the order sought against the respondent and in refusing to punish him as for contempt of court. While in the final decree and judgment in the divorce proceedings instituted by Ethelbert Waldron against the petitioner it was adjudged that Ethelbert Waldron should pay the sum of $25 per month to the legal guardian of Edmund Waldron, no legal guardian was appointed to whom these payments could be paid until the 23d of December, 1911, more than twelve months after the decree referred to was passed. The custody of the child was awarded to the father, and the latter was the natural guardian of the former; and the court was authorized under the evidence to find that the father as the custodian of the child had provided for the maintenance and education of the child, and to this end had expended and paid out even a larger sum than that which it had been decreed should be paid by him to the child’s legal guardian. It will be remembered that the amount which it was decreed that the father should pay to the child’s legal guardian was in the nature of alimony; and if, the father, the custodian of the child and being his natural guardian, in good faith expended the sums which should have been paid over to a guardian had one been duly appointed, the court, in the summary proceedings, could very properly hold that the father was not in contempt and should not be punished as one contumaciously disregarding a decree of the court.

The portions of the answer of the respondent which were in the nature of a cross-petition, while certain averments therein contained might be open to attack by special demurrer, should not have been stricken upon the oral motion to strike in the nature of a general demurrer, as they contained matters proper to be considered by the court in passing upon the question as to whether or not the respondent was in contempt of court.

Judgment affirmed._

All the Justices concur.