Hardy v. Pennington

• Decision Date: 16 February 1939
• Docket Number: 12491.
• Citation: 1 S.E.2d 667,187 Ga. 523
• Parties: HARDY v. PENNINGTON.
• Court: Georgia Supreme Court

1 S.E.2d 667

187 Ga. 523

HARDY v. PENNINGTON.

No. 12491.

Supreme Court of Georgia

February 16, 1939

Syllabus by the Court.

1. A judge of the superior court may modify an original judgment awarding permanent alimony based upon an agreement of the parties, where the judgment reserved such right.

2. Under the facts of the present case the court did not err in refusing to adjudge the defendant in contempt for failure to pay alimony.

Paul T. Chance, of Augusta, for plaintiff in error.

Curry & Curry, of Augusta, for defendant in error.

REID Chief Justice.

Mrs Nody Pennington filed suit for divorce against Fred C Pennington. Pursuant to an agreement between the parties the judgment granting the divorce, dated January 20, 1932, awarded the custody of the three minor children to the plaintiff, provided for the payment by the defendant of $50 per month alimony to the plaintiff for the support of herself and minor children, said payments to be made 'to the plaintiff so long as she remains unmarried, or so long as any of the children remain dependent upon her for support and education,' and in case of her remarriage said sum was then to be paid to the child or children who might at such time be minors or dependent, 'but with the right at that time for the defendant to have the question of dependency and modification reviewed by the court.' The judgment further provided that the plaintiff should have a life-estate in a 'residence in Blythe,' Georgia, the property of the defendant. The plaintiff remarried, and thereafter, on September 17, 1932, on petition of the defendant, the judge passed an order modifying the original judgment by providing that the defendant should pay to the plaintiff $25 per month for the support of the two minor children still remaining with her, the eldest son being then in the care of the defendant. On December 21, 1933, the plaintiff filed a petition praying that the above order of September 17, 1932, be set aside as illegal and void, and seeking recovery of payments in arrears under and by virtue of the original judgment. The defendant answered, and among other things alleged that only one of the minor children was at that time in the custody of the plaintiff, and prayed that the original judgment be further modified so as to provide a support only for said child. On a hearing held January 15, 1934, the court denied the prayer to set aside the order of September 17, 1932, adjudged the defendant to be in arrears under the previous orders in the amount of $420.60, and further modified the original judgment by ordering that defendant pay to the plaintiff $20 per month for the support of the child still living with her, a daughter having married. Thereafter, on January 27, 1934, the court passed the following order: 'It appearing to the court that the parties to the above-stated cause have agreed upon a settlement of their differences, by raising no question about the correctness and legality of the order dated January 15, 1934, and the payment of the cash sum ordered to be paid under said order, and it further appearing that the defendant, Fred C. Pennington, has deeded his entire interest in the house and lot in Blythe to the plaintiff and the minor son, Fred C. Pennington Jr.; now, therefore, be it ordered, that the order of January 15, 1934, be and the same is further modified to the extent that the defendant will not have to make any further payments until the further order of the court. This modification is made in pursuance to the agreement of the plaintiff that no further payments will be required of the defendant.'

On May 21, 1937, the plaintiff filed a petition praying that the orders of September 17, 1932, January 15, 1934, and January 27, 1934, be set aside 'as null and void;' that the amount of back alimony due under the original judgment be determined; and that a rule nisi issue calling on defendant to...