Shepherd v. Shepherd , 241 Ga. 484 ( 1978 )

241 Ga. 484 (1978) 246 S.E.2d 183

SHEPHERD
v.
SHEPHERD.

33530.

Supreme Court of Georgia.

Submitted April 28, 1978. Decided May 17, 1978. Rehearing Denied June 29, 1978.

Peek & Whaley, Glenville Haldi, William H. Whaley, for appellant.

B. J. Smith, R. Bradley Egerton, for appellee.

UNDERCOFLER, Presiding Justice.

This is the sixth reported appeal in this divorce case. Shepherd v. Shepherd, 239 Ga. 22 (235 SE2d 538) (1977); 236 Ga. 425 (223 SE2d 818) (1976); 234 Ga. 708 (217 SE2d 286) (1975); 233 Ga. 228 (210 SE2d 731) (1974); 232 Ga. 354 (206 SE2d 460) (1974); 231 Ga. 257 (200 SE2d 893) (1973). The issue presented here is whether a statement in the divorce decree that "defendant [wife] be awarded no alimony, she having waived hearing as to alimony in the second amendment," amounts to "silence as to alimony" so that a prior alimony award in a separate maintenance action remains in force. Shepherd v. Shepherd, 236 Ga. 425, supra; Tobin v. Tobin, 93 Ga. App. 568 (92 SE2d 304) (1956). The wife's second amendment clearly stated she was not seeking alimony in the divorce case. Therefore, the issue was not relitigated and the alimony award in the separate maintenance action remains in effect. The trial court erred in setting aside the prior orders and fi. fa.'s holding the husband in contempt for failure to make these payments. Woodall v. Woodall, 147 Ga. 676 (95 SE 233) (1917).

Judgment reversed. All the Justices concur.