Hayes v. Hayes

• Decision Date: 13 November 1940
• Docket Number: 13321.
• Citation: 11 S.E.2d 764,191 Ga. 237
• Parties: HAYES v. HAYES.
• Court: Georgia Supreme Court

11 S.E.2d 764

191 Ga. 237

HAYES v. HAYES.

No. 13321.

Supreme Court of Georgia

November 13, 1940

Rehearing Denied Nov. 20, 1940.

Syllabus by the Court.

'Alimony is an allowance out of the husband's estate, made for the support of the wife when living separate from him. It is either temporary or permanent.' Code, § 30-201.

(a) This statement of law defining alimony contemplates an 'allowance' by a judgment or decree of court, and not a mere provision for support in a private contract between the parties. Accordingly, a suit on such an alleged contract is not a suit for alimony, or an 'alimony case' within the constitutional provision relating to jurisdiction of the Supreme Court.

(b) Under the foregoing ruling, the Court of Appeals, and not the Supreme Court, has jurisdiction of the present case.

Mrs. Marjorie Morgan Hayes filed suit in the superior court of Fulton County against Mose S. Hayes, her former husband, praying judgment for amounts claimed by her under a maintenance agreement entered into between them on September 1, 1936. The defendant demurred to the petition, on general and special grounds. The court overruled the general grounds of demurrer, but sustained the special grounds and struck one paragraph of the petition and a portion of one of the prayers. To this judgment the defendant excepted. It is recited in the bill of exceptions: 'This case is brought to the Supreme Court because the question involved is one of alimony and is a question [of] which this court has exclusive jurisdiction.' The petition alleged, in substance: The plaintiff and the defendant were husband and wife until January 3, 1939, on which date a judgment granting a total divorce between them was rendered in the superior court of Fulton County. On September 1, 1936, plaintiff and defendant were living in a bona fide state of separation, and on that date they entered into a contract as follows:

'Georgia Fulton County. This agreement, made and entered into this 1st day of September, 1936, between Mose S. Hayes and Mrs Marjorie Morgan Hayes, of said State and county, witnesseth That said parties are now living in a bona fide state of separation, and they desire to settle between themselves all issues as to support for said Mrs. Marjorie Morgan Hayes, and as to any interest that she has or may have in the estate of said Mose S. Hayes in the event of his death, and which is to be accepted by her in full and final settlement of all alimony, temporary or permanent counsel fees, or any interest that she has or may have in his estate, and any and all other claims that she has or may have against said Mose S. Hayes, or his estate. Therefore, for and in consideration of the surrender of all interest that said Mose S. Hayes has as to all furniture and household goods, and the payment of two hundred ($200) dollars in cash, and the sum of fifty ($50) dollars per month until the said Marjorie Morgan Hayes obtains employment that will pay her the weekly salary of twenty ($20) dollars per week or more, and upon obtaining said employment said payments are to be twenty-five ($25) dollars per month as long as the said Marjorie Hayes makes the sum of twenty ($20) dollars per week, and in the event that her said salary shall be reduced to less than twenty ($20) dollars per week, then the payments of fity ($50) dollars shall be reinstated, said payments are to be in force as hereinafter provided,--the said Mrs. Marjorie Morgan Hayes does by these presents release and forever discharge said Mose S. Hayes from any and all liability for her support and or alimony temporary or permanent, attorneys fees in any action that might be brought either against or by said Mose S. Hayes; and it is further agreed that upon payment of said sums that said Mrs. Marjorie Morgan Hayes does by these presents release and disclaim any and all rights that she has against said Mose B. Hayes and/or his estate for a year's support, dower, or as an heir thereof, in the event of his death. Receipt of the payment of two hundred ($200) dollars is hereby acknowledged; the first payment of fifty ($50) dollars is to be made thirty days after the subsequent payments are to be made monthly thereafter. It is further agreed that in the event of the marriage of said Mrs. Marjorie Morgan Hayes, that all payments to be made under this agreement cease. Said Mose S. Hayes, by the execution and delivery of this agreement, does by these presents release and disclaim in favor of said Mrs. Marjorie Morgan Hayes all of his interest right and title to the furniture and household goods now located in the home.'

The petition further alleged: 'That thereafter said defendant filed the divorce action hereinbefore referred to; and said voluntary contract was not filed as a part of the record in said cause nor embraced in the final decree rendered; the same having been previously executed in lieu of alimony and being under its terms a substitute for any decree of alimony. * * * That plaintiff has never remarried.' That under the terms of the contract the defendant is due the plaintiff the sum of $275, and will be due other sums monthly in the future. The prayers were to recover the sum alleged as past due, and such other and further sums as may become due 'up to and including date of judgment,' together with interest; and for process.

The grounds of demurrer, which the court overruled, were as follows: '(1) Said petition fails to set forth a cause of action, in that it appears: (a) That it is an attempt to...