Moss v. Moss

• Decision Date: 15 November 1945
• Docket Number: 15264.
• Parties: MOSS v. MOSS.
• Court: Georgia Supreme Court

36 S.E.2d 431

200 Ga. 8

MOSS v. MOSS.

No. 15264.

Supreme Court of Georgia

November 15, 1945

Syllabus by the Court.

Under the pleadings and the evidence, it does not appear that the judge abused his discretion in awarding to the wife $300 per month as temporary alimony and $2000 as attorneys' fees.

On February 1, 1945, C. L. Moss filed a suit against his wife Mrs. Ola Jane Moss, alleging their marriage on February 2 1940, their separation on November 20, 1944, and praying for a total divorce on the ground of cruel treatment. On February 12, 1945, Mrs. Moss filed an answer and cross-action alleging cruelty on his part, and praying for temporary and permanent alimony, and attorneys' fees. The hearing on the issues as to temporary alimony and attorneys' fees was originally set for March 1, but was by agreement continued to May 12 because of the illness of Mr. Moss. At the hearing on the last-named date, the plaintiff tendered what he termed an amendment to his petition and a response to the wife's cross-action, which the court allowed. In this pleading, he contended that his wife was not entitled to any alimony or attorneys' fees, for several reasons alleged. He alleged, among other things, that at the time of a previous separation, in May, 1944, they had entered into a written agreement, under which she had accepted from him the sum of $8000 in settlement of all claims for alimony and other claims, as set out in the agreement, to wit:

'This agreement made and entered into on this the 17th day of May, 1944, by and between C. L. Moss, of Gordon County, Georgia, party of the first part, and Ola Hale Hair Moss, wife of the said C. L. Moss, also of Gordon County, Georgia, party of the second part, witnesseth that, Whereas said parties having for some time been married to each other, and one of said parties contemplating the filing of a divorce action against the other, both parties now desire that all property rights may at this time be fully settled between them, and to this end said parties contract and agree as follows:

'For and in consideration of the sum of eight thousand dollars ($8000), cash in hand paid at and before the execution of this agreement, said sum paid by the party of the first part and unto the party of the second part, said second party hereby relinquishes and renounces any and all claims she now has or may hereafter have against first party and his estate by reason of being or having ever been his wife; said sum of eight thousand dollars ($8000.00) being in full settlement of any and all claims for alimony, separate maintenance, support, and all claims for dower, homestead, year's support, and any and all claims that may arise either against the first party or his estate by reason of the second party being or having been his wife, and whether said parties become divorced after the execution of this agreement or not.

'In witness whereof, the party of the second part has hereunto set her hand and

affixed her seal on this the day and date first above written.

'Ola Hale Hair Moss (Seal)

'Party of the second part.'

He pleaded this contract as a complete bar to his wife's present claim for alimony and attorneys' fees, alleging that it was not merely a settlement of her claim for alimony, but was a 'final property settlement,' and that as such it was not rescinded by a presumption of the marital relation. He contended also that in view of her separate estate, including the $8000 aforesaid, she is not entitled to alimony, and has sufficient funds and estate to conduct this litigation.

After hearing evidence from the parties, the judge passed an order granting $300 per month as temporary alimony, and $2000 as attorneys' fees. To this judgment as a whole, and separately to each part of it, C. L. Moss excepted.

Y. A. Henderson, of Calhoun, and Neel & Ault, of Cartersville, for plaintiff in error.

J. G. B. Erwin, of Galhoun, and Mitchell & Mitchell, of Dalton, for defendant in error.

BELL Chief Justice.

The evidence need not be set forth in detail. Each of the parties made a case of extreme cruelty and blame against the other, and we think that only a few points require discussion.

Under the Code, § 30-217, as construed in Powell v. Powell, 196 Ga. 694, 27 S.E.2d 393, the contract of May 17, 1944, so far as it constituted a settlement of alimony and attorneys' fees, was nullified by the subsequent voluntary cohabitation of the parties; nor did this result depend on a restoration of the $8000 received by the wife under such settlement. The husband, in voluntarily renewing cohabitation without requiring a restoration, evidently intended for his wife to retain the sum paid, or the unconsumed part of it, as her separate estate. If he had demanded a restoration, the reunion might not have taken place; and now that the reunion itself has failed, the court could not well go back and impose conditions which he himself did not see fit to impose at the time cohabitation was resumed. See, in this connection 17 Am.Jur. 551, § 735; 30 C.J. 1065, § 847; 42 C.J.S., Husband and Wife, § 601, p. 185.

He contends, however, that the contract of May 17, 1944, was not merely a settlement of alimony, but was a 'final property settlement,' citing In re Estate of Ray, 304 Pa. 421, 156 A. 64, 79 A.L.R. 772. It is insisted that the contract differs in this respect from the one dealt with in the Powell case, supra, and bars Mrs. Moss from any further right to alimony. Alimony and attorneys' fees are all that are now for determination, and whatever effect the contract may have on other rights, in the event of a controversy regarding them, it is quite plain that, so far as alimony and attorneys' fees are concerned, the contract is subject to the provision that 'The subsequent voluntary cohabitation of the husband and wife shall annul and set aside all provision made, either by deed or decree, for permanent alimony.' Code, § 30-217. See further, as to property and alimony settlements:Lemon v. Lemon, 141 Ga. 448(1 b), 81 S.E. 118; Young v. Young, 150 Ga. 515(3), 104 S.E. 149; Smith v. Smith, 187 Ga. 743, 2 S.E.2d 417; Hamby v. Pye, 195 Ga. 366, 24 S.E.2d 201; Dennis v. Perkins, 88 Kan. 428, 129 P. 165, 43 L.R.A.,N.S., 1219; Garrett v. Kirtley, 97 W.Va. 484, 125 S.E. 347, 40 A.L.R. 1222; Hagerty v. Union Guardian Trust Co., 258 Mich. 133, 242 N.W. 211, 85 A.L.R. 417; 42 C.J.S., Husband and Wife, § 591, p. 168.

Nevertheless, as was said in the Powell case, the courts are not powerless to adjust the equities of the parties in the event of another separation and application for support. 'In such case the court in awarding alimony and attorneys' fees would take into consideration all the circumstances of the parties, i. e., the peculiar necessities of the wife, growing out of the pending litigation, her physical condition and her ability to contribute to her support, her separate estate, if any, including the consideration, or what remained thereof, paid under the former agreement, as compared with that of her husband, and his ability to pay.' Powell v. Powell, 196 Ga. 694, 701, 27 S.E.2d 393, 398, supra.

Mrs. Moss testified that she still had about $7000 of the amount she had received from Mr. Moss under the...