McClain v. McClain
| Decision Date | 02 December 1975 |
| Docket Number | No. 30472,30472 |
| Parties | Herbert L. McCLAIN v. Virginia McCLAIN. |
| Court | Georgia Supreme Court |
Bobby G. Beazley, Augusta, for appellant.
Hudson & Montgomery, Jim Hudson, Athens, for appellee.
Herbert L. McClain and Virginia McClain were divorced in 1969. An agreement of the parties relative to custody, support and education of their children was incorporated into the judgment of the court. The agreement provided for child support until each child reached 21 years of age, died, married, or became selfsupporting. It provided also:
The parties were ordered to comply with the terms of the agreement and the judgment of the court.
In August, 1975, a contempt citation was issued against the father alleging that he had refused to pay the balance of $809.54 due for the college expenses of one of the children. After a hearing the trial court found the father in willful contempt and ordered him to pay the arrearage. The appeal is from this judgment. Held:
1. The father contends that the child on whose behalf the contempt action is filed is over 21 years of age and that he is no longer responsible for her support and education.
'Until majority it is the duty of the father to provide for the maintenance, protection, and education of his child.' Code § 74-105. Jenkins v. Jenkins, 233 Ga. 902(2), 214 S.E.2d 368 (1975), which concerned a jury verdict awarding a college education for the child.
In the instant case we are not dealing with a jury verdict and the statutory duty of a father to maintain and educate his children. Here, we are dealing with a contract entered into between the parties, approved by the trial court, incorporated into the decree, and its obedience ordered.
There is a significant difference between an alimony decree rendered under the law and a contract settling alimony which is incorporated into the decree. Laughridge v. Laughridge, 219 Ga. 415, 133 S.E.2d 884 (1963). 'Where parties separate and by contract, as here, settle the right of their minor children for support and maintenance and such contract is approved by the trial judge and made a part of a final divorce decree, the courts will enforce the contract as made by them.' Gray v. Gray, 222 Ga. 641, 151 S.E.2d 774 (1966).
'A divorce court, if it is bound to abide by a valid separation agreement or property settlement, or if not so bound, desires to give effect to the agreement, has the power to incorporate it in the divorce decree or base the decree on its provisions, even though the court would not, in the absence of an agreement of the parties, have the power to make the decree that results from the incorporation of the agreement or the application of its provisions.' 24 Am.Jur.2d 1030, § 907.
The agreement of the parties which was incorporated in and made a part of the divorce decree is enforceable after the majority of each child.
2. Is the divorce decree in which the agreement of the parties was incorporated enforceable by contempt?
In Newton v. Newton, 222 Ga. 175, 149 S.E.2d 128 (1966) this court had before it an action for contempt which was based on an agreement between the parties to a divorce action. The agreement provided that the father pay for the tuitions, board and clothing of his child to complete her medical education. The agreement between the parties was never formally made a part of the divorce judgment and this court refused to enforce it by contempt. However, this court said (p. 176, 149 S.E.2d p. 129) that the rule was well established that, "Where, during the pendency of a divorce and alimony suit, the parties enter into a written contract whereby they settle alimony rights, including support and maintenance for their minor children, and such contract is approved by the court and by agreement incorporated in and made a part of the final decree, it thus becomes and is an adjudication of that issue and enforceable as any other judgment or decree for alimony, including child support.' Fambrought v. Cannon, 221 Ga. 289(1), 144 S.E.2d 335; Estes v. Estes, 192 Ga. 94, 96, 14 S.E.2d 681; Wilson v. Chumney, 214 Ga. 120(1), 103 S.E.2d 552.'
It follows that the divorce decree incorporating the agreement of the parties therein is enforceable by citation for contempt. Code § 30-204.
Several other states have also held that such a decree is enforceable by contempt. In Istnick v. Istnick, 37 Ohio Misc. 91, 307 N.E.2d 922 (1973) it is said: ...
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