Harper v. Harper

• Decision Date: 18 February 1974
• Docket Number: No. 28466,28466
• Citation: 204 S.E.2d 164,231 Ga. 748
• Parties: James Cary HARPER v. Mary Ann HARPER.
• Court: Georgia Supreme Court

Page 164

204 S.E.2d 164

231 Ga. 748

James Cary HARPER v. Mary Ann HARPER.

No. 28466.

Supreme Court of Georgia.

Feb. 18, 1974.

Syllabus by the Court

The order finding the appellant in contempt of court was not improper since the alimony provisions in the divorce decree were valid and enforceable.

T. M. Smith, Jr., T. M. Smith, Sr., Hunter S. Allen, Jr., Atlanta, for appellant.

Westmoreland, Hall, McGee & Warner, John L. Westmoreland, Jr., J. M. Crawford, Atlanta, for appellee.

GRICE, Presiding Justice.

James Cary Harper appeals from an order of the Superior Court of Fulton County finding him in contempt of court for refusing to comply with the provisions of a property settlement agreement between him and the appellee Mary Ann Harper (Gustin), which was incorporated into a divorce decree and made the judgment of that court on September 16, 1966.

Both parties filed motions for summary judgment, stipulating that the only issue to be determined was the validity of Paragraph 5(a) of the agreement referred to in the divorce decree, and further agreeing that if the provisions were enforceable, then the defendant was in contempt of court since he had the financial ability to comply with them.

The trial court granted the appellee's motion for summary judgment and overruled that of appellant. It adjudged him to be in contempt, but held that he might purge himself by paying to the appellee within 30 days 'the sum of Ninety-seven Thousand Eight Hundred Fifty-one Dollars and seventy-five cents ($97,851.75).' The amount of $100,000 was reduced by a credit of jointly held stocks not in dispute here.

The provision here in question provides as follows: 'Husband agrees that on or before April 1, 1973, he will turn over and deliver to wife shares of stock listed either on the New York Stock Exchange, the American Stock Exchange or securities listed over the counter, having a market valuation of $100,000 which securities shall be kept and retained by wife free and clear of all liens and encumbrances as part of permanent alimony. Said securities shall be delivered to wife whether or not she has remarried and in the event wife should not be living, said securities shall be delivered to a corporate trustee to be selected by husband in trust for the sole use and benefit of the two (2) children of their marriage, to-wit: Elizabeth Ann Harper and Kathryn Keahi Harper, and to vest equally in and between said children upon the younger of the two (2) children attaining the age of thirty-five (35) years. Husband may, in lieu of transferring said securities to wife (or the whole or any balance remaining to the corporate trustee in the event of the wife's death), turn over to her on or before April 1, 1973, cash...