Allen v. Withrow

• Decision Date: 09 October 1959
• Docket Number: No. 20622,20622
• Parties: William J. C. ALLEN v. Mary Nell WITHROW.
• Court: Georgia Supreme Court

Page 663

110 S.E.2d 663

215 Ga. 388

William J. C. ALLEN v. Mary Nell WITHROW.

No. 20622.

Supreme Court of Georgia.

Oct. 9, 1959.

Syllabus by the Court

Under the facts of the present case, the trial judge did not err in holding the former husband in contempt for failure to pay alimony pursuant to his agreement and the judgment of the court.

On February 20, 1959, the parties in the present case entered into a written agreement, wherein it was recited: both are residents of the State and county in which the agreement is executed; they are husband and wife, living in a bona fide state of separation; the wife has filed suit against the husband for divorce and alimony; and they have come to an agreement respecting all matters of alimony, it being agreed that the husband 'shall pay to the wife the sum of * * * $25.00 * * * per week for a period of six months, commencing on the date of these presents.' It was further agreed that the agreement between the parties might be incorporated in the decree of the court. On February 21, 1959, a decree of total divorce between the parties was entered by the judge of the superior court, who fixed alimony and support for the wife 'as provided in the written agreement of the parties attached hereto and made a part hereof.'

On July 17, 1959, the former wife filed an application for attachment for contempt, alleging that the defendant had failed and refused to comply with the order of the court. The defendant in his answer admitted that he had refused to make the alimony payments since the remarriage of his former wife, and stated that he 'is advised and believes that under the law such payments cease upon the remarriage of the plaintiff.'

The parties entered into a stipulation wherein it was recited that, if the defendant is under obligation to continue the payments of alimony to the plaintiff after her remarriage, he is delinquent in the sum of $175; and the sole question to be decided is 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 weekly instalments, would cease upon her remarriage.

On a hearing, the judge of the superior court found the defendant to be in contempt for refusing and failing to comply with the order dated February 21, 1959, and it was provided that the defendant might purge himself of contempt by paying the amount due of $175.

The exception is to the order holding the defendant in contempt.

Jack G. McKay, Nelson Coffin, Columbus, for plaintiff in error.

Bass H. Lewis, Jr., Columbus, for defendant in error.

HEAD, Justice.

A contract between a husband and wife made with the intention of promoting a dissolution of the marriage relation existing between them is contrary to public policy and is illegal and void. Birch v. Anthony, 109 Ga. 349, 34 S.E. 561; Powers v. Powers, 158 Ga. 251, 123 S.E. 220; Law v. Law, 186 Ga. 113, 116, 197 S.E. 272. But where, as in this case, the husband and wife were living in a state of separation, and the wife was suing the husband for divorce and alimony, they could enter into a valid and enforceable contract settling the issue as to alimony. Chapman v. Gray, 8 Ga. 341; McLaren v. McLaren, 33 Ga.Supp. 99; Sumner v. Sumner, 121 Ga. 1(3), 48 S.E. 727; Watson v. Burnley, 150 Ga. 460, 463, 104 S.E. 220; Gore v. Plair, 173 Ga. 88, 159 S.E. 698; Sells v. Sells, 206 Ga. 650, 58 S.E.2d 186.

Counsel for the plaintiff in error (the former husband) cite and rely upon White v. Murden, 190 Ga. 536, 9 S.E.2d 745, which was not a full-bench decision, two Justices dissenting, and the decision in that case did not give effect to the facts set forth. It appears that a lump-sum award was made by the jury, payable in monthly instalments. In Brown v. Farkas, 195 Ga. 653, 25 S.E.2d 411, 413, Mr. Presiding Justice Bell, speaking for a full bench, pointed out that White v. Murden, supra, 'did not expressly rule upon the significance or effect of the lump sum awards,' and stated that, if the ruling in White v. Murden was in conflict with the ruling in Brown v. Farkas, supra, it would not be followed, the effect of lump sum settlements being controlled by the unanimous decision in Melton v. Hubbard, 135 Ga. 128, 68 S.E. 1101.

In green v. Starling, 203 Ga. 10, at page 14, 45 S.E.2d 188, it was pointed out that the verdict in White v. Murden, supra, was rendered by consent of the parties, and the record shows that it was a consent verdict, approved in writing and signed by both parties and their counsel. 'A decree rendered in accordance with a consent verdict, though it may not be valid as a judgment of the court, will, in the absence of fraud, accident, or mistake, be operative as an agreement binding upon all the parties thereto.' Driver v. Wood, 114 Ga. 296, 40 S.E. 257; Kidd v. Huff, 105 Ga. 209, 31 S.E. 430; Sapp v. Williamson, 128 Ga. 743, 750, 58 S.E. 447; Wilbanks v. Wilbanks, 159 Ga. 196, ...