Fulenwider v. Fulenwider, 12957.

• Citation: 5 S.E.2d 20
• Decision Date: 14 September 1939
• Docket Number: No. 12957.,12957.
• Court: Supreme Court of Georgia
• Parties: FULENWIDER. v. FULENWIDER.

5 S.E.2d 20

FULENWIDER.
v.
FULENWIDER.

No. 12957.

Supreme Court of Georgia.

Sept. 14, 1939.

Adhered to After a rehearing Oct. 19, 1939.

[5 S.E.2d 21]Syllabus by the Court.

1. On a fast writ of error from an order granting temporary alimony in a suit for alimony alone, brought under the Code, § 30-213, this court cannot consider an exception of the husband to an award to the wife of the custody of a minor child during the litigation. Hall v. Hall, 185 Ga. 502, 504, 195 S.E. 731; Thompson v. Thompson, 124 Ga. 874, 53 S.E. 507.

2. The husband himself having prayed in his answer that the court "make proper allowance * * *for the support of defendant's minor child, " his exception to the award of any alimony to the child is without merit. As to the award to the wife, the fact that she and the husband executed a written agreement in which she waived alimony and other claims, "conditional" upon his "compliance with the terms of this agreement, " would not preclude her from obtaining temporary alimony, where a condition of the agreement required that he pay $50 in cash, and this amount was not paid or tendered. See Code, §§ 20-109, 20-110, 20-112; Schmidt v. Mitchell, 117 Ga. 6 (4), 12, 43 S.E. 371; Jordan Realty Co. v. Chambers Lumber Co., 176 Ga. 624, 629, 168 S.E. 601; Brenard Mfg. Co. v. Kingston Supply Co., 22 Ga.App. 280, 283, 95 S.E. 1028.

(a) The husband was not relieved from his obligation to pay the $50, as a condition of the wife's relinquishment of alimony, by the alleged subsequent novation relieving the husband from such payment, since it was essential that such a novation be sup ported by a valuable consideration, and in the absence of such a consideration it was a nudum pactum.

(b) The husband could not claim an estoppel against the wife from obtaining the benefit of the husband's non-payment, since he must have pleaded such an estoppel, if not expressly, at least by showing facts under which the husband was alleged to have failed to act to his injury. The petition did not make these averments, and the contention as to an estoppel is raised for the first time in this court.

3. Where a wife brings a suit for temporary and permanent alimony without a prayer for divorce, under the Code, § 30-213, and the undisputed evidence shows not only a bona fide state of separation, but that the original separation arose by mutual agreement of the parties, it is unnecessary for the wife to show cruel treatment or some other legal ground for a divorce, or that her husband had "abandoned" her or "driven her from the home, " as provided by the Code, § 30-210, or that acts of the husband and not of herself caused the separation, in order to authorize the judge to exercise his discretion and allow temporary alimony.

4. Even if, in a case such as this of a bona fide separation by mutual agreement, proof of any fact such as last stated were required, the evidence, although conflicting, authorized a finding by the judge that cruel treatment as a ground for divorce existed, and that a command of the husband and her fear to remain had "driven" her from the home.

5. The court did not err in awarding the amounts ordered as temporary alimony and attorney's fees.

Error from Superior Court, Chatham County; John Rourke, Jr., Judge.

Suit by Annabel Fulenwider against Hal Fulenwider, Jr., for temporary and permanent alimony. Judgment for plaintiff on the application for temporary alimony, and defendant brings error.

Affirmed.

This was a suit only for temporary and permanent alimony brought by a wife in behalf of herself and a two-year old child. On the hearing of the application for temporary alimony the judge granted $17.50 a week for the wife, $12.50 a week for the child, and $250 attorney's fees. He

[5 S.E.2d 22]

awarded the custody of the child to the mother, with a right to the father to see the child at reasonable times and places. The parties agreed that the fee allowance was reasonable. While the husband excepted to the award of any alimony to the child, he prayed in his answer that the court "make proper allowance only for the support of defendant's minor child." As to the wife's claim of alimony, he made two defenses: (1) That the parties had made a new contract, changing the original provisions of the first written separation agreement, in which the wife released her claims to alimony upon condition that the husband immediately pay $50, and that under this new contract the husband was relieved from paying the $50 but the wife's release remained to bar her claim; and (2) that her proof failed to show that she had separated from her husband because he ordered her out of the house, or that she had left under any fear that if she did not go, she would suffer some injury. The petition was filed on January 20, 1939, and the temporary alimony application was heard on February 3, 1939. On January 5, 1939, both parties had executed under seal a separation agreement, which recited:

"Whereas unhappy and unreconcilable differences have arisen * * * rendering it impossible for them to live together as wife and husband;" and "whereas a petition for divorce has been filed by [the wife] * * * to * * * the superior court, * * * said parties, in consideration of the mutual covenants and promises hereinafter expressed, hereby contract and agree, each with the other as follows:

1. That they would live separate and apart for the remainder of their lives.

2. That neither would molest or endeavor to compel the other to cohabit or dwell with him or her. 3. That all the real and personal properties of each would remain his or her 'sole and separate property, ' 'free from all rights or claims of the other therein or thereto. Neither of the parties shall hereafter be responsible for any debts created or contracted by the other.' 4. The parties hereto agree that the custody of their only child * * * who is at the present time three years of age, shall be with * * * her mother, but the father shall have the right at all proper and reasonable times to see the child and shall have the further right to have the child visit and live with him whenever he shall elect. 5. The said father shall pay to the wife, as support for their child * * * the sum of $30 per month beginning January 1, 1939. This sum shall be inclusive of all expenses of the child save in cases of illness, " hospitalization, doctors, and educational expenses when the child became older. 6. "Said husband agrees to pay immediately to the wife the sum of $50 and said allowance shall be in full settlement, satisfaction and in bar of any and all rights the same wife might otherwise have to alimony, both temporary and permanent, against her said husband, and shall likewise be in full settlement and satisfaction, and in bar, of any and all claims that said wife might otherwise have for year's support or dower, or as an heir at law, or otherwise, against the estate of said husband at or after his death, but these waivers shall be conditioned upon full compliance with the terms of this agreement." 7. Should the divorce proceedings now pending terminate in final decree in such proceedings, on motion of either party this agreement shall be confirmed and made a part of the verdict and decree of court, and the cost of that proceeding shall be paid by the husband.

There was no testimony or contention that the husband had ever paid or tendered to the wife the $50 provided in connection with the release of her alimony, or any other amount provided by the original separation contract. As to the $50, he testified: "I have never been approached by any one to pay it to exactly and refused--I am quite sure I probably would have." His contentions are that he was relieved from the obligation to pay this money, (a) by a valid novation or subsequent agreement, created by the wife's acceptance of new provisions in two letters signed by the husband's attorneys and addressed to the wife's attorney, relieving him from such payment; and (b) by an estoppel against the wife from claiming the benefit of such non-payment, because her acceptance of the terms in the letters led him to believe that she would not insist on the payment. The pleadings of the defendant husband contained no express reference to any claim of estoppel, and the contention with reference thereto was made for the first time in this court. However, it is insisted that the facts pleaded were sufficient to show, not only a valid novation, but an estoppel. The petition itself, and the letters referred to, made part thereof,

[5 S.E.2d 23]

show that the husband, after setting forth the original separation agreement, above quoted, alleged that later on the same day he learned that the wife planned to marry another person after obtaining a divorce, and further that then: "He demanded that certain things be done, including the determination of the future custody of his child, and the dismissal of the pending divorce action against him, based upon cruel treatment. All of the various agreements between the parties were incorporated in a letter of January 6, 1939, addressed to [the] attorney of Mrs. Fulenwider, dictated in his presence and in the presence of...