*1 overruling of motion for specifies trial, the amended new apparent it is on appeal is from the the verdict that the grounds aрpeal contained in the are those being amended motion new the order trial, (b) (Ga. reviewable under Code Ann. 6-701 § 1965, p. amended). L.
Instеad of merits dismissing, would on the decide the case in legislative accordance with Appellate the clear intent of the Aсt, (Ga. Practice in L. 40) pp. 18, 6-809. v. Allison, Brackett App.
25257. CHARLES CITIZENS SOUTHERN NATIONAL ATLANTA, BANK OF Executor. Justice. The Citizens Southern National Bank
Undercofler, of Atlanta as Shelly executor under the will of Charles James brought an against action Mrs. Alice Stone in the Charles Superior County, Court of Fulton Georgia, to petition alleges award. The that a divorce decree on January entered 28, 1953, the case of Alice Mrs. Stone Shelly Charles inсorporated James Charles which therein a contract entered into between the on De- cember 1952. The contract husbаnd pay $1,000 per the wife month as and “In the event that there should be a drastic in the financial circumstances of Shelly the said or in Charlеs, James event that there should be a drastic cost of increase living nationwide, then shall their best efforts use reach revised made here- be under, and if agree, pay- unable to then the be ments made shall be fixed which tries the divorce action referred to hеreinabove.” The contract also alimony payments would continue after the death of petition alleges the husband. that at entry time of the Shelly the divorce James had an of $62,000 $72,000 per year income addition to his income from investments and that the total inсome of the approximately $20,000 per year. It contends entered into between
under the terms
alimony payments
former wife should
per
per
$500
from
month to
month.
$1,000
reduced
on the
petition
The defendant filed motion
dismiss
against her.
that it did
set forth a
action
cause of
judge
overruled
motion to dismiss the
The trial
*2
ruling
certified
for
Held:
review.
of
personal.
death
alimony is
The
for
An action
divorce
аction.
the
There-
parties before
decree abates
one of the
the
render a
longer
has
after the court no
(1)
Whitе,
v.
Lumber Co.
tion of the defendant. P. except Mobley, the Judgment concur, reversed. Justices All Felton, who J., J., September July
Argued 8, 1969 Decided 1969 Rehearing September 29, 1969. denied ap- Harland, Huie, Hardwick, Stell Pearce D. Huie W. pellant. Moyе
Gambrell, Russell, Killorin, Moye, Jr., A. Hardy, Max appellee. B. general dissenting. “The rule that con- Justice,
Felton,
alimony
given
of
payment
for the
should be
full
tracts
period
by
contract
the
the
may
beyond
the
of the husband.” Donaldson
(164
citing Ramsay v.
Baldwin,
141),
v.
682
SE2d
(71
639).
given
right
by
Sims,
SE2d
“A
statute
551 and made fixing alimony approved are of the contract part an enforceable they of trial becоme court, decree p. Baldwin, supra, of v. 682. divorce decree. Donaldson is not permanent alimony a question where the case “[I]n passed agreement upon by disposed jury, court, agreement is made the power change may or modify thereafter to the decree lawfully therein this is done court, reserved and where power remains in the control and Pennington, thereafter tо or it.” 187 (1 Ga. 667); Chandler Ga. 40 SE2d present case, In the divorce “by part reference made fully though set out in full to all ment herein as matters (Emphasis covered said contract.” supplied.) This effec- tively made the of the court. Further- more, “as to all became matters covered *3 contract.” unquestioned provides (a) It the contract payments by the amount of the the court where partiеs agree thereon; (b) are unable to continuation of alimony payments after the majority the husband. The recognizes jurisdiction the court’s to modify judgment during its lifetime, husband’s but not thereafter, judgment personal my as to In hold- opinion, him. this ing give fails to effect to the rule in such cases as supra, stated, whereby jurisdiction as hereinabove judgment to present was reserved itself. How can the to the husband when agrеed specifically payments and contracted to have (which do) ^nligated log- his death he was not to ? Is it after ical provide to assume that the would for modification payments during to changing due conditions the husband’s provision lifetime and no of the make similar thе benefit the widow? modifica- contract, providing clear to It is me continuation after payments tion of and their the husband’s contеmplated continuing and consented to a impliedly death, parties’ to give to jurisdiction in the court that, equally clear providing fоr modifications. intention of jurisdiction on not bestow such although could did, could, court merely by alone, their contract incor- impliсation it by necessary when reserve such provisions. its contract and all porated in its through Code is not affected The abovе §§ 30-220- way only to case. The this applicable are not 30-225, constitutionally applicable made could been these statutes have specified 9, 1955, date the March prior judgments rendered to by requir- (Code Ann. pp. in Ga. L. 30-224) prior rendered judgments ing consent both judgments. writtеn of said any modification thereto alteration, etc., revision, amendment, consent (a) prior March ments rendered applicability of the above precedent makes to the a condition re- attempted last mean consent to the must sectiоns, for said to be con- vision, etc., order law agreement or written consent stitutional. is no such there Since attempted judgment, the above statutes revision constitutionally apply case, cannot with the result prior adoption to the of these the casе is controlled the law as set out hereinbefore. statutes, my majority give In fails to view, the the contract the “full required by case, and effect” the Donaldson supra, when provision payments death, enforces the the husband’s contractual judicial refuses enforсe the correlative provision for modification of such for the same rea- sons necessary as made the for such modification during desirable the husband’s lifetime. affirm the mo- *4 complaint.
tion to dismiss the Presiding Mobley am authorized state Justice con-
curs in