Davis v. Welch

• Decision Date: 07 January 1965
• Docket Number: No. 22737,22737
• Citation: 220 Ga. 515,140 S.E.2d 199
• Parties: J. Harlan DAVIS v. Ruby Ellen Davis WELCH.
• Court: Georgia Supreme Court

Page 199

140 S.E.2d 199

220 Ga. 515

J. Harlan DAVIS v. Ruby Ellen Davis WELCH.

No. 22737.

Supreme Court of Georgia.

Jan. 7, 1965.

Syllabus by the Court

1. Where the jury awards the wife as permanent alimony a lump sum of $5,000 payable in three, equal, annual installments and judgment is entered accordingly, the remarriage of the wife does not relieve the husband of liability to pay the installments falling due after her remarriage.

Ruby Ellen Davis brought her petition seeking a divorce from Harlan Davis, and asking that she be awarded as alimony one-half of all the property owned by him, which included 78.86 acres of land, all of which she had helped him accumulate by working at a textile mill and assisting him in farming during their 23 years of living together as husband and wife. On May 11, 1959, a jury rendered a verdict for divorce in her favor and awarded alimony to her as follows: '$5,000 to be paid in three annual installments, the first said installment being due and payable on the first day of November, 1959, in the sum of $1,666.66; second installment due and payable November 1, 1960, in the sum of $1,666.66; and the third installment being due and payable November 1, 1961, in the sum of $1,666.67.' This verdict was made the judgment of the court.

On September 4, 1962, the land of the defendant was levied upon to satisfy $3,333.33 due under the judgment. In his affidavit of illegality filed to the levy the defendant alleges that the first installment due under the alimony judgment was paid, but that prior to the due date of the second installment, the wife remarried, and that her remarriage canceled the debt and obligation created by the judgment.

The trial judge, after hearing, on a stipulation of the facts, ordered the execution to proceed. It is to that judgment that the plaintiff in error excepts.

Mitchell & Mitchell, Dalton, for plaintiff in error.

McCamy, Minor, Vining & Phillips, Dalton, for defendant in error.

MOBLEY, Justice.

1. The sole question presented is whether the remarriage of the wife terminated the liability of the husband to make the payments falling due after her remarrige.

We are of the opinion that there was a lump sum award of $5,000 to the wife, and that the judgment vested in her the right to that amount from her husband and that it was not divested by her remarriage. The jury knew that she might remarry, and their verdict did not provide that her remarriage before payment of the full amount would cause a forfeiture or that payments should terminate upon her remarriage. The facts indicate a contrary intention. The wife had worked at a textile mill and assisted in the farming of their land over a period of 23 years of married life and had helped her husband accumulate certain personal property and a 78.86 acre farm. Her sole prayer as to alimony was that she be awarded as permanent alimony one-half of all the property owned by her husband.

This case is similar to, and we think controlled by, the full bench decision of Roberson v. Roberson, 199 Ga. 627(4), 34 S.E.2d 836. There the jury found alimony in an amount equal to half of defendant's property to be fixed by appraisers and to be paid by plaintiff in equal weekly installments of $5.00. That amount was...