Green v. Starling

45 S.E.2d 188 | Ga. | 1947

1. In a divorce and alimony case, the jury returned a verdict finding a total divorce between the parties and a "consent verdict for alimony," requiring the husband to pay specified hospital and medical bills, and $30 per month to the defendant wife for the period of three years beginning November 1, 1946, and also awarding to her an automobile that was then in her possession, and thirteen acres of land, more or less, as described in the verdict; upon which verdict a judgment was entered granting alimony to the wife as therein stated. Held, that such verdict and judgment, when considered in their entirely, cannot be reasonably construed as implying a condition that the part of the alimony which was to be paid in monthly instalments should cease or abate on remarriage of the divorced wife, so as to relieve the husband from further liability as to such instalments upon the happening of such event.

2. Accordingly, it was error to deny the petition of the former wife to have the defendant adjudged in contempt of court for failure to pay instalments in accordance with the judgment, notwithstanding her marriage to another man, and to discharge the defendant from the rule for contempt that had been issued on such petition.

No. 15943. NOVEMBER 12, 1947. Mrs. Wilma Starling Green, former wife of John C. Starling, but now married to another man, presented to Honorable Walter Thomas, Judge of the Superior Court of Ware County, a petition praying that Starling, her former husband, be required to show cause why he should not be adjudged in contempt of court for failure to pay alimony in compliance with a judgment which had been rendered in connection with a decree of divorce between the parties, and which required payment of $30 per month as alimony for three years beginning November 1, 1946.

A rule nisi was issued, and Starling filed an answer. At the hearing the judge passed an order discharging the defendant (former husband), and to this judgment Mrs. Green excepted.

The petition of Mrs. Green, initiating the contempt proceeding, alleged:

(2) On August 12, 1944 the defendant, John C. Starling, deserted (present) petitioner and separated from her.

(3) On January 21, 1946, he filed a suit for divorce "against the plaintiff" (now Mrs. Green), returnable to the April term, 1946, of the Superior Court of Ware County. She filed an answer and cross-bill for alimony, and alleged therein that the defendant was not entitled to a divorce.

(4) The case as thus made was tried at the October term, 1946, and a "consent verdict for alimony" was rendered by a jury, and the verdict was made the judgment or decree of the court; a copy of which verdict and judgment is hereto attached, marked Exhibits "A" and "B" and made a part of this paragraph.

(5) On January 26, 1947, petitioner, now Mrs. Green, married a person other than the defendant (Starling).

(6) Since the petitioner's remarriage, the defendant has wilfully failed and refused to pay the amount awarded by such verdict and judgment, to be paid by the month, and he is therefore now in arrears approximately $120.

It appears from Exhibit "A," attached to such petition, that the part of the verdict relating to alimony was as follows:

"That the plaintiff [Starling] shall pay to Huey Hospital the sum of $212 for hospital and medical bill for services rendered to the defendant; that the plaintiff shall pay to Acme Pharmacy at Homerville the sum of $28.45 drug bill for drugs furnished defendant.

"That the plaintiff shall pay to the defendant the sum of $30 per month for a period of three years beginning November 1, 1946.

"We further award the defendant the following described property belonging to the plaintiff, to wit: One 1938 Ford V-8 Tudor Sedan, which is now in the possession of defendant; also the following described real estate: (13) acres more or less" of land in Ware County, and more fully described in the verdict.

Exhibit "B" shows a copy of a judgment that was rendered upon such verdict (which judgment is treated by the parties as conforming to the verdict in all respects).

In his response or answer to the rule, Starling admitted substantially all of the material allegations of the petition, including the allegations in paragraph 4 as to the "consent verdict for alimony," which was made the judgment of the court.

Further answering, "defendant says that he has refused to pay the monthly instalments on said alimony judgment since the remarriage of plaintiff, for the reason that said judgment was for alimony payable in monthly instalments, and defendant is advised and believes that under the law such payments cease upon the remarriage of the plaintiff."

The case as thus made was heard upon the pleadings, it being agreed by counsel that only a question of law was presented. The judge held that the verdict and judgment as set out in the petition did "not constitute a lump sum award," and that the instalments claimed were not payable "after the remarriage" of the petitioner, Mrs. Green. Accordingly, he ordered and adjudged that her petition be denied and that the defendant be discharged. We think that the court erred in holding that, under the terms of this consent verdict and judgment, the former husband was not liable for any of the instalments that accrued after remarriage of his former wife. Since it appears that both the verdict and the judgment adopted the precise terms of the agreement as to alimony, whether it was in writing or not — their meaning and effect should be determined at least substantially by the rules for construction of contracts, the cardinal rule being to ascertain the intention of the parties. Brown v. Farkas,195 Ga. 653 (2) (25 S.E.2d 411).

If the verdict had simply awarded $30 per month without any statement as to the number of months or length of time for which payments at that rate should be made, and without awarding title to other property, a very different question might have been presented, and this is true regardless of consent. The verdict, however, was not only based upon consent of the parties, but it stated a specific period of time for which the husband should pay monthly instalments of $30 each, to wit, for three years beginning November 1, 1946, and it also required him to pay designated hospital and medical bills, and then further awarded to the wife an automobile and described real estate. We use the word verdict for the sake of brevity, as both the verdict and the judgment constitute the basis of the present proceeding.

According to the petition, all that was described in the verdict was awarded as "alimony," and therefore no part of it can be considered as a settlement of property rights aside from alimony. Nevertheless, we think that the verdict should be considered as a whole, even though it may not be strictly in the form of a lump-sum award.

"Alimony is an allowance out of the husband's estate, made for the support of the wife when living separate from him. It is either temporary or permanent." Code, § 30-201. It is also declared in the Code that, in cases of voluntary separation or abandonment of the wife, the husband may voluntarily by deed make adequate provision for the support and maintenance of his wife, consistent with his means and her former circumstances, which shall be a bar to her right to permanent alimony. See §§ 30-210, 30-211.

In Melton v. Hubbard, 135 Ga. 128 (68 S.E. 1101), it was held: "1. A valid agreement may be made between husband and wife, contemplating an immediate separation, for a separate allowance to the wife for her support. . . 2. In such an agreement where the husband promises to pay a lump sum for the wife's support, payable in instalments, and the wife dies before all the instalments are paid, her executor may sue for the unpaid instalments as they severally mature." While there was a dissent as to one ruling in that case, the statements just quoted were concurred in by all the Justices.

It is true in that case a lump sum was stated, payable in instalments, whereas in the present case the total sum of the thirty-six instalments was not expressly stated. Whether or not this difference in express language or calculation, without more, would constitute sufficient basis for a legal distinction between the two cases — treating death and marriage each as a contingency that might happen before all instalments were due — yet in the instant case there are additional facts which would seem to bring it within the principle ruled in the Melton case, when the verdict here is considered as a whole, and in the light of the consent of the parties on which it was based. It is clear that the automobile and the real estate were awarded absolutely and in fee simple, and that the subsequent marriage of the divorced wife did not affect her title to either of these properties. Wise v.Wise, 156 Ga. 459 (119 S.E. 410). It may be that, if additional property had been awarded in like manner, the instalment feature would have been omitted, but that for some reason satisfactory to the parties, a present equation was struck whereby specific properties were to be awarded in fee simple in part satisfaction, while the remainder was to be supplied by an unconditional obligation to pay $1080 at the rate of $30 per month for the definite period of three years; or it may be that the husband did not own other property which he could deliver in fee simple, and therefore under the same equation the instalment payments were agreed upon. Furthermore, the maxim noscitur a sociis, if not also ejusdem generis, would seem to be applicable. That is to say, since the parties had in mind that the automobile and real estate should be awarded specifically and in fee simple, did they not at the same time and in like manner intend that the instalment payments should be unconditional? 28 Words Phrases (Perm. Ed.), 766.

The present case is distinguished by its facts from White v.Murden, 190 Ga. 536 (9 S.E.2d 745), in which it was held that an allowance of money in a decree for divorce and alimony, made purely for the use of the wife and payable in monthly instalments, ceases upon her remarriage. While the verdict in that case awarded $600 as permanent alimony, payable in monthly instalments of $50 each, and the record shows that the verdict there was rendered by consent, there was no other award, either of money or property. The decision in that case should also be construed in the light of the statement at the beginning of the opinion as to the sole question that was argued by counsel, to wit, "whether or not an allowance of alimony in money, in a decree for divorce and alimony, made solely for the use of the wife and payable in monthly instalments, would cease on her remarriage." See also, in this connection, Roberson v.Roberson, 199 Ga. 627 (4), 630 (34 S.E.2d 836).

The parties here knew that a divorce might be granted and hence that each might presently be free to marry again. There is no statute in this State prohibiting an allowance or payment of alimony in instalments after remarriage of a divorced wife, and we do not think that the verdict and judgment in this case when considered in their entirely can be reasonably construed as implying a condition that the instalments should cease on the happening of such event. It would have been so easy to state such condition in express terms, if it had been intended, and therefore the absence of any such statement, viewing the verdict as a whole, would seem to be rather strong evidence that the obligation was intended to be unconditional.

The question as to whether, and under what circumstances, the remarriage of a divorced wife will abate an allowance of alimony payable in instalments, has occasioned a multitude of decisions throughout the country, and there are numerous annotations and discussions by law publishers dealing with the question. On the general subject, see 17 Am. Jur. 474, 494, 495, 500, §§ 610, 648, 649, 657; 27 C. J. S. 993, § 239; 30 A.L.R. 79; 42 A.L.R. 602; 58 A.L.R. 639; 64 A.L.R. 1269; 100 A.L.R. 1262; 112 A.L.R. 246.

Judgment reversed. All the Justices concur, except Atkinsonand Head, JJ., who dissent; and Wyatt, J., who took no part inthe consideration or decision of this case.