Kirkland v. Kirkland , 200 Ga. 873 ( 1946 )

It was not error for the trial judge to refuse to modify the former judgment for alimony.

No. 15472. JULY 2, 1946. On January 10, 1946, Mrs. Pearl Kirkland filed her petition in the Superior Court of Sumter County against L. W. Kirkland, and alleged that on October 12, 1943, the defendant was ordered to pay her alimony in the sum of $25 per month, and that payment for six months, or $150, was past due. She prayed that the defendant be required to pay the amount due or be held in contempt of court. The defendant in his response contended that his failure to make payment was due to unemployment caused by conditions described by him, and he prayed that the court "reduce the amount of permanent alimony from $25 to $15 per month." The defendant did not deny in his response (nor did he in later proceedings) that judgment fixing alimony for the plaintiff at $25 per month had been rendered as alleged by her. On January 29, 1946, the trial judge, after hearing evidence and argument of counsel, held the defendant in contempt and ordered that he pay $25 "and $5 as a credit on alimony in arrears on or before March 1st, 1946," with like payment on the first of each month until the "amount in arrears is paid," and directed that the sheriff not confine him prior to March 1.

On the petition of L. W. Kirkland, Mrs. Kirkland was ordered to show cause before the court why the judgment of January 29 should not be modified by amendment. Attached to his petition to amend the judgment rendered on January 29, was a copy of the verdict of the jury dated May 25, 1942, granting a total divorce to both parties and fixing alimony for the wife and four children at $75 per month, "which shall continue as long as the four children live with her. As each of them leave her, one-fifth of the amount of alimony shall be reduced, or, in the event of the death, or as they arrive at the age of twenty-one years, their pro rata part shall be reduced, her part to continue as long as she remains unmarried." Also attached to the petition to modify, by amendment, was a copy of the judgment rendered May 25, 1942, in which the court stated: "the verdict for alimony is hereby made the judgment of the court. . . This order will be subject to revision only by agreement of the plaintiff and defendant herein, which will have to be evidenced by a writing to such effect."

In his petition to modify the judgment of January 29, it was contended by Kirkland that, under the terms of the verdict and judgment of May 25, 1942, Mrs. Kirkland would only be entitled to $15 per month, "that on the 12th day of August, 1943, all four of said children left her, and have not lived with her since." It was further asserted that the judgment of May 25, 1942, was not appealed from, and that the court was without authority "to alter, modify, or make any change whatever in a final verdict and decree awarding permanent alimony." In the petition to modify no reference was made to the judgment of October 12, 1943, fixing alimony for the wife at $25 per month.

On February 25, 1946, the court rendered judgment on the petition to modify, in which it was held that the evidence without contradiction showed that the defendant after taking care of himself and four children was unable to make payment of alimony and had exonerated himself of any contempt. It further appears from the judgment that custody of the four minor children had previously (on August 12, 1943) been awarded to the father on his application, after the verdict fixing permanent alimony, and that the judgment of October 12, 1943, fixing alimony at $25 per month, resulted from the change in custody by the court. The court refused to modify the judgment for alimony of $25 per month, and the exception is to that judgment. Counsel for L. W. Kirkland, the plaintiff in error, contends that the final verdict of the jury, and the decree thereon, allowed the wife $15 per month alimony, and that the trial court erred in refusing to modify a subsequent judgment fixing alimony at $25 per month. The verdict, rendered on May 25, 1942, granted alimony to the wife and four minor children in the sum of $75 per month, to be reduced $15 per month as each child should leave, die, or become of age. The verdict was made the judgment of the court, with the stipulation that the judgment would be subject to revision by written agreement of the parties. On August 12, 1943, on application of the father, custody of the minor children was awarded to him. It is alleged by Mrs. Kirkland that she was awarded alimony of $25 per month on October 12, 1943. The trial judge in the order here excepted to recites that there was an adjustment in alimony for the wife based on a change of custody, awarding the children to the plaintiff in error. Counsel for Mrs. Kirkland, in his brief, contends that the judgment fixing alimony for her of $25 per month was entered after the change in custody and on the application of Kirkland. While the revised judgment of October 12, 1943, does not appear to have been before the trial court (nor is it a part of the record here), the contention of Mrs. Kirkland as to the time it was entered is not disputed either by counsel for Kirkland, or such record as is before this court. Nor is there anything to contradict the contention of counsel for Mrs. Kirkland that the amended or revised judgment was entered on the application and at the instance of the plaintiff in error.

Authorities cited by counsel for the plaintiff in error to support his contention that the trial judge could not amend the original judgment rendered on the verdict of the jury are cited in Torras v. McDonald, 196 Ga. 347 (26 S.E.2d 598), where the rule is stated: "`After the termination of a suit for permanent alimony and the rendition of a final decree therein, not excepted to, the decree allowing alimony passes beyond the discretionary control of the trial judge; and he has then no authority either to abrogate it or to modify its terms, unlessthe power to do so is reserved in the decree.' [Italics supplied.] Wilkins v. Wilkins, 146 Ga. 382 (91 S.E. 415);Coffee v. Coffee, 101 Ga. 787 (28 S.E. 977); Woodall v.Woodall, 147 Ga. 676 (95 S.E. 233); Gilbert v. Gilbert,151 Ga. 520 (107 S.E. 490); Henderson v. Henderson,170 Ga. 457 (153 S.E. 182); Hardy v. Pennington, 187 Ga. 523 (1 S.E.2d 667)."

In the present case, the court reserved the right to amend the final decree by consent of the parties, so the authorities cited and relied upon by the plaintiff in error are in accord with the court's position that it could amend the decree after awarding custody of the minor children to the father on his application for such custody. Since the amended judgment fixing alimony at $25 per month was not offered in evidence, for inspection by the trial court, and is not in the record before this court, we cannot determine whether or not Kirkland consented to the order fixing alimony at $25 per month, but it may be implied that he did consent, for it appears that he complied with this order for approximately 18 months.

Acquiescence by a party in a judgment will bar a subsequent proceeding to modify such judgment, where no sufficient cause is shown for the failure to plead the defense now urged, which was available to the party at the time the original judgment sought to be modified was rendered. Scudder v. Puckett, 12 Ga. 337;Taylor v. Sutton, 15 Ga. 106 (60 Am. D. 682);Mullins v. Christopher, 36 Ga. 586; East Tenn. c. Ry. Co. v. Greene, 95 Ga. 35 (22 S.E. 36). In Mullins v.Christopher, supra, it was said, "If a party have a good defense at law, and from negligence fail to set it up at the proper time, he must take the consequences of his own laches." Having acquiesced in the amended judgment for some 18 months, the plaintiff in error cannot now complain of the court's refusal to modify the same. If the plaintiff in error did not actually consent to the judgment fixing alimony for the wife at $25 per month, he is now barred by his own laches from complaining.

Kirkland brought a petition contending that he should be awarded custody of his minor children. This petition was allowed, and out of the proceeding grew the amended judgment now complained of. In Butler v. Tifton c. Ry. Co., 121 Ga. 821 (49 S.E. 763), it was held: "Having secured a judgment sustaining their position, the railway company must be held bound by the ruling which it invoked, and by the judgment in its favor which it secured." See also Brown v. State, 109 Ga. 571 (34 S.E. 1031), and Papworth v. Fitzgerald, 111 Ga. 55 (36 S.E. 311). The plaintiff in error here invoked the judgment and procured the court's order that he was entitled to custody of the children, and it further appears that it was on his own application that the amended judgment as to alimony here complained of was rendered. He is bound by the judgment he invoked, which was favorable to him.

Furthermore, the plaintiff in error cannot have a judgment revised or amended which is not offered for inspection, and is not before the court. Crummey v. Crummey, 152 Ga. 628 (110 S.E. 891); Jones v. Whitehead, 167 Ga. 849 (146 S.E. 768).

Judgment affirmed. All the Justices concur.