Cox v. Cox

• Decision Date: 09 February 1944
• Docket Number: 14711.
• Citation: 29 S.E.2d 83,197 Ga. 260
• Parties: COX v. COX.
• Court: Georgia Supreme Court

29 S.E.2d 83

197 Ga. 260

COX v. COX.

No. 14711.

Supreme Court of Georgia

February 9, 1944

Syllabus by the Court.

1. The consent decree for permanent alimony entered in November 1940, during the first or appearance term, in a suit for alimony only, was not void upon the ground that the court was without jurisdiction to render such a judgment at the appearance term, the law upon this subject having been changed by the act of 1935.

2. Nor was the decree void because it was not based upon verdict of a jury.

3. Nor was such decree affected by the fact that on a subsequent suit by the husband against his wife, he obtained a total divorce, the wife presenting no claim for alimony in the divorce suit, and the judgment therein being silent as to such matter.

4. Under the preceding rulings, the judge did not err in dismissing the husband's response to the rule nisi for contempt, together with his motion to set aside the alimony decree; nor in adjudging him in contempt for failure to pay alimony as therein required.

Mrs. Jessie P. Cox filed in Fulton superior court returnable to the November term, 1940, a suit against her husband, Ralph F. Cox, in which she prayed for temporary and permanent alimony and reasonable attorney's fees. On this petition a rule nisi was issued and served. At the first term of the court a consent decree was entered as follows:

'The parties hereto consenting, it is considered, ordered, and adjudged that the defendant herein, Ralph F. Cox, do pay to the plaintiff herein, Mrs. Jessie Cox, the sum of fifty dollars per month for a period of twelve months, beginning with November 15, 1940; and the sum of seventy-five dollars per month for the remainder of the natural life of the plaintiff, beginning on November 15, 1941. It is further ordered that the defendant do pay to the plaintiff, for the use of William T. Thurman, attorney for plaintiff, the sum of fifty dollars, as attorney's fees for the prosecution of this action. Such sums and such payments shall be in full settlement of all claims of plaintiff against defendant for alimony, both temporary and permanent. It is further ordered and decreed that all sums of money now in possession of plaintiff derived from the sale of 2265 Essex Avenue are the property of plaintiff. This the 13th day of November, 1940. Virlyn B. Moore, J. S.C. A. C. We hereby consent that the foregoing final order shall be entered at the return term of said case, to wit, the November term, 1940. Mrs. Jessie P Cox, plaintiff. Ralph H. Cox, defendant. Robt. T. Efurd & Mose S. Hayes, attorneys for defendant, William T. Thurman, atty. for pltf.'

Thereafter, to wit, on the 14th day of July, 1943, Mrs. Cox presented to one of the judges of the superior court of Fulton County her petition in which she recited the entering of the final alimony decree against her husband, that he had paid every installment except the one due July 1, 1943, and that he was now in arrears on payments since the last named date; that demand for payment has been made and the same refused; that the defendant is gainfully employed and is financially able to pay said sums but refuses to do so. She prayed that the defendant show cause why he should not be adjudged in contempt. The defendant, Ralph Cox, appeared in response to the rule nisi issued upon the last mentioned petition and also moved to vacate and set aside the decree entered on November 13, 1940, asserting that the said decree was null and void for that the same was taken at the first term, and that the court was without jurisdiction to render the same, and that jurisdiction of the subject matter could not be conferred by consent and for the further reason that said matter was not tried by a jury. He alleged also that the rule for contempt was proceeding illegally, for the reason that he, the respondent, had on January 22, 1943, filed suit against Mrs. Jessie Cox for divorce, and that a total divorce was granted on the 7th day of May, 1943, and the jury in their final verdict did not make any award or any reference to any alimony, she not asking for any permanent alimony in said divorce case, and that she is therefore estopped from proceeding with the rule for contempt. The prayer was to set aside the order and decree entered on November 13, 1940, and that respondent be not held in contempt.

Mrs. Jessie P. Cox filed her written motion to dismiss the response and the respondent's motion to set aside the original alimony decree of November 13, 1940. At the hearing on the contempt proceeding no evidence was introduced, the prosiding judge on said hearing entering the following order:

'Under Code sections 30-131, 30-213, 30-202, 37-1102 and 81-1103, the consent final decree of November 13, 1940, was not void for any reason assigned in the motion of July 27, 1943, filed by defendant and the same is overruled. The motion of plaintiff filed this date to dismiss the above answer and motion of defendant is sustained and said motion and answer is dismissed.

'Upon hearing, the motion and petition for contempt filed July 14, 1943, is granted and defendant is adjudged in contempt of court for not paying the alimony due July 1, 1943. Let the same be paid at once and all current amounts due thereafter be likewise paid as against any contention made by the pleadings. This the 11th day of August, 1943.

'Edgar E. Pomeroy, Judge superior court, Atlanta circuit.'

The bill of exceptions assigns error on this judgment.

Barrett & Hayes, of Atlanta, for plaintiff in error.

W. O. Slate and Chas. W. Bergmen, both of Atlanta, for defendant in error.

BELL Chief Justice.

1. The original proceeding for alimony begun by Mrs. Cox was evidently predicated upon the provisions of section 30-213 of...