188 Ga. 49 | Ga. | 1939
On April 22, 1925, Mrs. T. N. (Belle) Kirby brought a suit for divorce and alimony against T. N. Kirby. It was alleged in the petition that their four children were Adel, thirteen years of age, Gladys, ten years, Thomas, five years, and Joseph, two years of age; that the children were in the possession and custody of petitioner, and being educated, clothed, and supported by her. She prayed that the court award her their custody and possession; that so far as she was individually concerned she waived all right to alimony and support, but she prayed that the court award her alimony for said children, counsel fees, and that she be given a divorce. She was granted a divorce, the second verdict containing the following: “We further find for attorneys $35, and $5 per month for each of said children until each arrives at the age of eighteen years, as alimony, payable monthly.” On the verdict a decree was entered which recited, in part, that the plaintiff recover of the defendant $35 permanent attorney’s fees, and $5 per monh for each of said four children until each is eighteen years old, said sum to be paid on the first day of each and every month.
On January 16, 1936, Mrs. Kirby (having in the meantime become Mrs. Belle Kirby Johnson) filed a petition against T. N. Kirby, reciting what is stated in substance above; that the defendant was in arrears in his payments for the support of the children in the sum of $350; and that he stubbornly and persistently refused to comply with the decree. She prayed for a rule, requiring him to show cause why he should not be punished for contempt, etc. At the hearing the judge found him in contempt of court, and that he had not explained to the satisfaction of the court why he had not paid the greater part of past-due alimony. He was ordered to pay “at least one half due. alimony” within thirty days, and in default to be confined in jail until it was paid. He excepted.
It is next insisted that the verdict in so far as it awarded alimony is void, for the reason that it did not specify the names of the children nor make separate awards to them. The verdict does provide “$5 per month for each of said four children until each is eighteen years old.” Their names and ages are given in the petition, though not in the verdict. In Cunningham v. Faulkner, 163 Ga. 19 (135 S. E. 403), it was said: “The verdict and decree in the divorce ease, upon which the present proceedings are based, were not void on the ground that the verdict allowing a stated sum as alimony for the support of the wife und child did not specify, what amount the minor child should"be entitled to for its support, nor in what manner, hoto often, nor to whom it should be paid.” (Italics ours.) See also Christian v. Christian, 153 Ga. 272 (111 S. E. 809); Jackson v. Jackson, 179 Ga. 152 (175 S. E. 456). As was said in the case last cited: “It is true that our Code provides that if the jury, on final verdict, find in favor of the wife, they shall also, in providing alimony for-her, specify what amount the minor children shall be entitled to for their support, and in what manner, how often, to whom, etc., it shall be paid; and there is a want of regularity in a verdict and a decree, where total divorce and alimony is found, if they do not comply with the statute in the respect indicated; and if the husband had duly excepted to this decree and verdict, there would perhaps have been merit in his contention. But, as we have said, he can not wait until this day and escape the responsibility of paying the alimony imposed by the verdict and decree following it. So this contention is without merit.”
The evidence was sufficient to support the finding of the judge that the failure to pay alimony was a contempt of court.
Judgment affirmed.