Beach v. Beach

• Decision Date: 10 October 1968
• Docket Number: No. 24771,24771
• Citation: 224 Ga. 701,164 S.E.2d 114
• Parties: William Whitaker BEACH v. Aurelia Anne Stephenson BEACH.
• Court: Georgia Supreme Court

Page 114

164 S.E.2d 114

224 Ga. 701

William Whitaker BEACH v. Aurelia Anne Stephenson BEACH.

No. 24771.

Supreme Court of Georgia.

Oct. 10, 1968.

Rehearing Denied Nov. 7, 1968.

Syllabus by the Court

1. A judgment in a former contempt proceeding, requiring the appellant to pay specified debts of the appellee under an agreement which had been made the judgment of the court in a divorce and alimony action, could not reduce the obligation of the appellant to pay all of the debts of the appellee covered by the agreement, since the trial judge in a contempt proceeding has no authority to modify the terms of a divorce and alimony judgment.

2. An obligation of the appellant in the agreement to pay indebtedness of his former wife, contracted prior to a certain date, was a part of alimony, and the appellee was entitled to recover attorney's fees for the enforcement of this obligation by contempt proceeding, since the appellant did not show any justifiable reason for failing to pay the obligation.

Burruss, Bell & Nylen, Stanley Nylen, Ray B. Burruss, Jr., Atlanta, for appellant.

John C. Tyler, Atlanta, for appellee.

MOBLEY, Justice.

William Whitaker Beach appealed from an order finding him in contempt of court for failure to pay a debt owed by his former wife, Aurelia S. Beach, and ordering him to pay $250 as attorney's fees.

In the divorce and alimony action between the parties an agreement between them was made the judgment of the court, and in this agreement the appellant agreed 'to be responsible for and pay all joint and individual debts incurred by the parties, as of 8:30 p.m. September 6, 1965, with the exception of any individual charges or debts made by the wife since 8:30 p.m. July 1, 1965.' In the contempt action under review the appellee sought to have the appellant adjudged in contempt for failure to pay an indebtedness of $2,000 evidenced by a promissory note executed by her to Mr. Hamilton Harris, dated February 6, 1959.

The appellant filed a plea of res judicata, asserting that in a former petition for rule for contempt the appellee under oath had stated that her total joint and individual debts as covered by the agreement were in a stated amount, and the appellant was ordered to pay specified debts, which did not include the indebtedness of $2,000.

The appellant enumerates as error the failure to sustain his plea of res judicata, and the award of attorney's fees.

1. The appellant relies on Jones v. Schacter, 29 Ga.App. 132, 114 S.E. 59, holding that a judgment rendered in litigation arising under a contract is conclusive of all of the accrued rights of the parties arising under the contract, whether they were actually inquired into or not, and that such judgment may be pleaded as res judicata in a subsequent suit between the parties arising under the same contract. This principle is not applicable to the facts of the present case.

The judgment making the agreement of the parties the judgment of the court in the divorce and alimony action was the final adjudication of the liability of the appellant, and a proceeding to hold him in contempt was merely one method of enforcing that judgment. It has been repeatedly held that the trial judge has no authority in a contempt proceeding to modify the terms of divorce and alimony judgment. Roberts v. Mandeville, 217 Ga. 90, 121 S.E.2d 150; Booker v. Booker, 219 Ga. 358, 360, 133 S.E.2d 353; Vickers v. Vickers, 220 Ga. 258, 259, 138 S.E.2d 308. The order in the former contempt case adjudging the defendant in contempt and...