240 Ga. 515 | Ga. | 1978
The appellant filed this contempt citation against the appellee, alleging that he was $3,939 in arrears in child support payments awarded to her in a 1970 divorce decree. The trial court granted the appellee’s motion for summary judgment on the ground that a prior undissolved marriage between the appellee and another party rendered the 1970 divorce decree null and void. The appellant appeals. We reverse.
It is true that the appellee’s prior undissolved marriage rendered him incapable of contracting the
Having determined that a divorce was the appropriate method for dissolving this marriage, it follows almost as a matter of course that child support could be awarded in the divorce proceeding. The only decision on this point appears to be Wallace v. Wallace, 221 Ga. 510 (145 SE2d 546) (1965). In Wallace the wife had filed a petition against her husband seeking alimony for herself and for support of an unborn child. The husband filed a plea in bar alleging that his nonage rendered the marriage void. The trial court overruled the plea. This court affirmed. In the court’s view, the purpose of the 1952 annulment statute was to protect children of marriages previously considered void under the rule in such cases as Eskew v. Eskew, 199 Ga. 513 (34 SE2d 697) (1945), in which the wife was denied alimony for the support of herself and the child of the marriage since the husband’s nonage rendered the marriage void. This court in Wallace stated that," [i]n view of the obvious purpose of the statute to uphold the interest and welfare of children manifested in its provisions insuring their legitimacy, prohibiting annulment, and thus requiring divorce to dissolve such marriages, we hold that the right to alimony lies as a necessary concomitant remedy to fulfill the general design of the statute.” Wallace, supra, 221 Ga. at 513.
Therefore, the judgment of the trial court is reversed and the case is remanded to the court for reconsideration.
Judgment reversed.