Martin v. Martin, 45492

• Decision Date: 09 February 1971
• Docket Number: No. 45492,No. 1,45492,1
• Citation: 123 Ga.App. 278,180 S.E.2d 562
• Parties: Elton R. MARTIN v. Anna L. MARTIN
• Court: Georgia Court of Appeals

Page 562

180 S.E.2d 562

123 Ga.App. 278

Elton R. MARTIN v. Anna L. MARTIN.

No. 45492.

Court of Appeals of Georgia, Division No. 1.

Feb. 9, 1971.

L. S. Cobb, Ralph D. Vaughn, Marietta, for appellant.

Edwards, Bentley, Awtrey & Parker, Donald A. Mangerie, Marietta, for appellee.

Syllabus Opinion by the Court

QUILLIAN, Judge.

On October 7, 1969, Anna L. Martin filed suit against E. R. Martin in the Cherokee Superior Court. The plaintiff in her complaint sought the recovery for the sum of $2,000 as alimony which was part of an Ohio divorce decree. The Ohio decree dated April 1, 1969, was attached to the petition. On December 16, 1969, the defendant filed a plea setting out that he had filed a voluntary petition in bankruptcy in the U.S. District Court; that the indebtedness due in the instant case was duly scheduled. The plea requested a stay of the order pending determination of the issues in bankruptcy. The trial judge granted the stay, reciting that the defendant was restrained from further action pending discharge of the court. On February 9, 1970, defendant filed a plea which set out that he had been duly adjudged bankrupt on January 30, 1970.

Subsequently, on May 4, 1970, the trial judge entered an order which recited 'no answer having been filed by the defendant within the time allowed by law for same, and after hearing evidence, judgment is awarded the plaintiff in the amount of $2,000 and attorney's fees.' On this same date, the defendant filed what he titled 'response to order for final judgment and fi fa.' However, insofar as the record shows no ruling was made on such response. Appeal was taken from the order awarding judgment to the plaintiff. Held:

1. Where a claim belongs to one of the classes which the Bankruptcy Act excepts from the operation of a discharge, the fact that the holder did not object to the discharge does not preclude enforcement of such claim against the bankrupt after the discharge. 8B C.J.S. Bankruptcy § 562, p. 35; 9 Am.Jur.2d 556, Bankruptcy § 744. See also Kendrix v. Superior Egg Co., 99 Ga.App. 575, 577, 109 S.E.2d 59; Aiken v. Bank of Ga., 101 Ga.App. 200, 204, 113 S.E.2d 405. Section 17(a) of the Bankruptcy Act (11 U.S.C. 35) provides, inter alia, that liability for alimony falls within the exceptions to the release of a bankruptcy claim after discharge.

2. (a) We are aware, as contended by the appellant, that the Supreme Court in considering its jurisdiction has held that a suit on a foreign judgment for alimony is not an action to recover alimony but simply an action on a debt of record. McLendon v. McLendon, 192 Ga. 70, 14 S.E.2d 477; Lawrence v. Lawrence, 196 Ga. 204(3), 26 S.E.2d 283; Belcher v. Belcher, 204 Ga. 436, 49 S.E.2d 904. However, the cases dealing with the jurisdiction of the court are not controlling insofar as a construction of the Bankruptcy Act is concerned. See Hayes v. Hayes, 191 Ga. 237, 241, 11 S.E.2d 764.

(b) In Green v. Beaumont, 179 Ga. 804, 806, 177 S.E. 572, the Supreme Court considered the bankruptcy statute where the liability was not established by a decree granting alimony but rested on a voluntary contract by which the husband agreed to pay certain stipulated sums as alimony for the support and maintenance of his wife. The court recognized the principle that liability for alimony cannot be affected by a bankruptcy is equally applicable where the liability rested upon contract as if it rested upon a decree and stated that the fact a judgment was rendered to enforce the voluntary contract was immaterial. In the course of its decision the court then made the following ruling: 'The obligation of a husband to provide support and maintenance for his wife is a duty imposed by law, and for that reason can not be classified with other obligations which do not involve similar duties. Wetmore v. Markoa, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390. It is partly for this reason that the courts hold, in determining whether alimony is in fact involved, that they can go behind judgments and ascertain from the record whether or not alimony was the foundation of the proceeding in which the judgment was obtained. No merger ensues in consequence of obtaining judgment upon a contract providing for...