Wright v. Wright , 205 Ga. 524 ( 1949 )

The allegations of the petition, showing rendition of a judgment against the husband for permanent alimony for the support of the minor children of himself and his wife, and further showing that thereafter the whole family was re-established in normal family relationship and that the husband was not indebted to the wife, either as an individual or as a guardian of the children, in any sum whatever, were sufficient, as against general demurrer, to set forth a cause of action for a declaratory judgment and an accounting.

No. 16696. JULY 11, 1949. Luther Wright filed in Floyd Superior Court, against his wife, Louise Wright, as an individual and as guardian of their three children who were 18, 17, and 12 years of age respectively, and who were also named as defendants, a petition which, as twice amended, alleged substantially the following: The petitioner and his wife lived together from 1927 until shortly before August 5, 1938, when they separated. On the date last mentioned the wife filed a suit for permanent alimony against her husband in Ben Hill Superior Court, but through inadvertence he failed to appear and defend the suit, and judgment was entered against him requiring that he pay as permanent alimony the sum of $20 per month to each of the children until each child reached legal age, and $15 per month for the wife. Shortly after rendition of the judgment for permanent alimony the husband and wife became reconciled and have lived together as man and wife since that time. Since the reconciliation the children have lived with the husband and have been supported by him. Thereafter the wife made no further claim upon the husband for the $15 per month awarded her as alimony, but she continued to claim that the alimony judgment, in so far as the three children were concerned, remained in full force and effect and required the husband to pay to her, for the benefit of the children, the sum of $20 per month, each, without regard to the amounts the husband was forced to spend in supporting and maintaining them. In order to enforce her contention the wife, on March 24, 1943, caused an execution to be issued in the amount of $3,750 plus interest and costs, and caused the same to be entered upon the general execution docket in the office of the Clerk of the Superior Court of Floyd County, the husband and all of the defendants having moved to Floyd County at the time. The husband, in order to avoid embarrassment and to insure, so far as possible, his domestic tranquility, reached an agreement with his wife for the settlement of the execution, and deeded to her as guardian for the three children, an interest in certain realty located in Floyd County. As a consequence the execution was marked canceled and satisfied up to February 10, 1945, and it was the husband's understanding that no further claim for alimony of any kind would be made against him by reason of the judgment for permanent alimony. The wife subsequently advised her husband that she considered the alimony judgment in favor of the children to still be in full force and effect and accruing at the rate of $20 per month per child, even though they were all still living in the husband's home and being supported by him; and the wife demanded that he pay over to her the monthly sums of money without allowing any credit for sums actually spent by him in supporting and maintaining the children. Subsequently the wife, on November 19, 1946, caused an execution, based upon the judgment for permanent alimony in favor of the children, to be issued against the husband in the amount of $1210 plus costs and interest, and caused the same to be entered on the general execution docket of Floyd County. In addition she caused a notice to be entered on the lis pendens docket in the office of the Clerk of the Superior Court of Floyd County. The husband is not indebted to the wife, either as an individual or as a guardian of the children, in any sum whatever; however, the action of the wife in causing the execution to be placed of record has considerably embarrassed, hindered, and harassed him and has made it impossible for him to sell or trade freely in lands or other property in Floyd County, inasmuch as the execution purports to be a lien on all of his property. A present real controversy exists between the husband and wife, and a judgment should be rendered declaring the respective rights of the parties in regard to the alimony judgment. The husband has no adequate remedy at law, and is being irreparably damaged inasmuch as his credit and good standing in the community have been and are being affected by reason of the execution and notice forming a cloud on all of his realty, and he is unable to trade or sell certain realty which he owns. The husband prayed: that process issue; that the court declare the rights of all parties in regard to the alimony judgment; that, in the event the court finds the husband is indebted to the defendants in any sum whatever, he have an accounting to determine the exact amount; that a copy of the petition and amendment be personally served upon each of the minors named as defendants, and that the court pass an order appointing a guardian ad litem for the minors; that a second original of the petition and amendment be issued and transmitted to Irwin County and served upon a named defendant child who is now located in that county; that the entry of the execution on the general execution docket of Floyd County be canceled and removed therefrom, and that the notice on the lis pendens docket be likewise canceled and removed; and for general relief. A guardian ad litem was appointed for the minor children.

The wife interposed a general demurrer to the amended petition, which was sustained, and the husband excepted. The defendant demurred on the ground that the facts set forth in the amended petition do not constitute any cause of action, legal or equitable, and are insufficient in law as a basis for any of the relief prayed for.

The Code, § 30-217, declares: "The subsequent voluntary cohabitation of the husband and wife shall annual and set aside all provision made, either by deed or decree, for permanent alimony. The rights of children under any deed of separation or voluntary provision or decree for alimony shall not be affected thereby." However, under the allegations of the present petition, there was more than voluntary cohabitation of the husband and wife. The whole family was reestablished in normal family relationship. The husband and wife went back together, the children went back in the home, the mother-and-father relationship was resumed as to them, and all relationships were restored just as they were before the separation on account of which the alimony judgment was rendered. As appears from the petition, the present home life is in all respects the same as the original home life. Although no specific amount is stated as having been supplied as support since assumption of the family relation, the petition alleged that the husband was not indebted to the wife, either as an individual or as a guardian, in any sum whatever, and contained a prayer for a declaratory judgment and an accounting. The purpose of the alimony judgment was to insure the support of the children, and as long as the husband actually furnishes such support he should at least be credited with whatever money is actually paid therefor. See in this connectionBarnum v. Barnum, 205 Ga. 448 (1) (53 S.E.2d 685). Considering the petition as a whole, it stated a cause of action for declaratory judgment and an accounting, and the trial court erred in sustaining the general demurrer and in dismissing the action. See 27 C. J. S. 1253, § 323, (c).

In the present case the petitioner does not pray that the alimony judgment be declared satisfied, and the question is left open as to whether or not the resumed family relationship of the husband and wife and their children has the effect of satisfying the judgment.

A different ruling is not required by the decision in Varble v. Hughes, 205 Ga. 29 (52 S.E.2d 303), where under different facts this court held in effect that neither the parents, nor the trial judge with their consent, can by subsequent agreement nullify or modify the final decree so as to deprive the children of the alimony granted by the verdict and decree.

Judgment reversed. All the Justices concur, except Duckworth,C. J., who dissents. Wyatt and Candler, JJ., concur specially.