187 Ga. 523 | Ga. | 1939
Mrs. Nody Pennington filed suit for divorce against Fred C. Pennington. Pursuant to an agreement between the parties the judgment granting the divorce, dated January 20, 1932, awarded the custody of the three minor children to the plaintiff, provided for the payment by the defendant of $50 per month alimony to the plaintiff for the support of herself and the. minor children, said payments to be made “to the plaintiff so long as she remains unmarried, or so long as any of the children remain dependent upon her for support and education,” and in case of her remarriage said sum was then to be paid to the child or children who might at such time be minors or dependent, “but with the right at that time for the defendant to have the question of dependency and modification reviewed by the court.” The judgment further provided that the plaintiff should have a life-estate in a “residence in Blythe,” Georgia, the property of the defendant. The plaintiff remarried, and thereafter, on September 17, 1932,. bn petition of the defendant, the judge passed an order modifying the original judgment by providing that the defendant should pay to the plaintiff $25 per month for the support of the two' minor children still remaining with her, the eldest son being then in the
On May 21, 1937, the plaintiff filed a petition praying that the orders of September 17, 1932, January 15, 1934, and January 27, 1934, be set aside “as null and void;” that the amount of back alimony due under the original judgment be determined; and that a rule nisi issue calling on defendant to show cause why he should not be required to pay said alimony or be adjudged in contempt. The petition alleged a compliance by the defendant with'the order of January 15, 1934, by the payment to the plaintiff of the sum named therein, but charged him with a failure and refusal to thereafter pay to the plaintiff any sum whatsoever, although amply able to do so. In one part of the petition the order of January 27,
In this State, in a suit for divorce and alimony it is the duty of the jury to fix the amount of alimony and the amount the minor children shall be entitled to for their permanent support. Code, § 30-207. Upon the rendition of a verdict awarding a divorce and alimony, and the entering of a decree in conformity therewith, the court has no power to reserve therein the right to modify thereafter the amount of alimony thus awarded, nor to do such act, except by the consent of the parties. Wilkins v. Wilkins, 146 Ga. 382 (91 S. E. 415); Gilbert v. Gilbert, 151 Ga. 520 (107 S. E. 490); Coffee v. Coffee, 101 Ga. 787 (28 S. E. 977). Cf. Gaines v. Gaines, 169 Ga. 432 (150 S. E. 645). As to the sum thus awarded the minor child or children, “the parents themselves can not by subsequent voluntary settlement in effect nullify or essentially modify the final decree so as to deprive the child of the support to which he is entitled by the verdict and decree.” In Glaze v. Strength, 186 Ga. 613 (198 S. E. 721), it was held that the judge did not err, in a proceeding by the wife to collect the sum awarded the child by the verdict, in striking the answer of the defendant setting up in defense thereto such a voluntary settlement between himself and the plaintiff. However, in a ease where the question of permanent alimony is not passed upon by the jury, but is disposed' of by an agreement of the parties, which agreement is made the judgment of the court, the power thereafter to change or modify the decree may be therein lawfully reserved in the court, and where this is done the judgment remains in the control and power of the court thereafter to change or modify it. Upon its face, the original decree was not final, but the reservation contained therein, by agreement
Upon conflicting evidence the court was amply authorized to find that the purported agreement embodied in the order of January 27, 1934, was in fact made and consummated by the parties, and that plaintiff and her attorney understood the same to be a final termination of the litigation, if approved and so entered. For no reason assigned did the court err in refusing to adjudge the defendant in contempt.
Judgment affirmed.