Daniel v. Daniel

• Court: Georgia Supreme Court
• Writing for the Court: MOBLEY
• Citation: Daniel v. Daniel, 216 Ga. 567, 118 S.E.2d 369 (Ga. 1961)
• Decision Date: 09 February 1961
• Docket Number: No. 21104,21104
• Parties: Evelyn Lowndes DANIEL v. Thomas H. DANIEL, Jr.

Page 369

118 S.E.2d 369

216 Ga. 567

Evelyn Lowndes DANIEL v. Thomas H. DANIEL, Jr.

No. 21104.

Supreme Court of Georgia.

Feb. 9, 1961.

Smith, Field, Ringel, Martin & Carr, Herbert A. Ringel, H. A. Stephens, Jr., Atlanta, for plaintiff in error.

John L. Westmoreland, John L. Westmoreland, Jr., Harry P. Hall, Jr., M. K. Pentecost, Jr., Atlanta, for defendant in error.

Syllabus Opinion by the Court

MOBLEY, Justice.

A final judgment and decree of divorce and alimony was entered in Fulton Superior Court on October 6, 1955, between the parties to this litigation. The case was tried before the judge without a jury, and the final judgment and decree incorporated an agreement between the parties, which settled the question of custody and support of the minor children of the parties and the question of alimony for the wife. In the agreement the parties divided the household furnishings, and the husband agreed, among other things: to deed the wife the residence property, where they had resided prior to separation, and to transfer to her the policies of casualty insurance thereon; to transfer an automobile to her and the insurance policy thereon; to transfer to her a $20,000 life insurance policy on the husband's life, and to continue to pay the premiums thereon; to pay $1,000 to one of the minor children to apply towards his college education, or to turn over to said child a certain life-insurance policy. The agreement expressly provided that the settlement therein made was intended as a full and complete satisfaction of the alimony obligations of the husband to the wife and of the husband's obligation to support his minor children. In the final judgment and decree, after ordering that each of the parties should perform his and her respective obligations under the agreement, the trial court added the following: 'The defendant shall have no other and further duty of support of the plaintiff or of the said minor children, except as set forth in said agreement; except that the court reserves jurisdiction as to unmarried minor children, hereafter to consider any application, upon proper showing, as to modifications of this decree relating to the support of said children.'

On June 27, 1960, the former wife filed a petition to modify the final judgment and decree of October 6, 1955, seeking to require the father to 'adequately and properly support' one of the minor children named therein. The defendant father filed demurrers and a plea in bar to the petition for modification. On September 28, 1960, the trial court entered an order overruling the said demurrers and plea in bar, but, during the same term of court, vacated that order and entered an order sustaining the general demurrer and dismissing the petition. The plaintiff assigns error on the order vacating the order of September 28, 1960, and upon the order sustaining the general demurrer and dismissing the petition.

Held:

1. The petition does not state a cause of action under Ga.L.1955, p. 630 (Code, Ann.Supp. §§ 30-220 et seq.) for modification of the divorce and alimony decree of October 6, 1955, because that statute, by its express terms, is inapplicable to a case such as this, where the wife or child or children or both have been given an award from the corpus of the husband's estate in lieu of weekly, monthly, annual or similar periodic...