Newsome v. Newsome, 31042

• Decision Date: 09 July 1976
• Docket Number: No. 31042,31042
• Citation: 227 S.E.2d 347,237 Ga. 221
• Parties: Gaile B. NEWSOME v. Thomas F. NEWSOME.
• Court: Georgia Supreme Court

Page 347

227 S.E.2d 347

237 Ga. 221

Gaile B. NEWSOME v. Thomas F. NEWSOME.

No. 31042.

Supreme Court of Georgia.

July 9, 1976.

Hatcher, Meyerson, Oxford & Irvin, Clifford Oxford, Paul E. Pressley, Atlanta, for appellant.

Rich, Bass, Kidd & Witcher, R. Hopkins Kidd, Decatur, for appellee.

HILL, Justice.

The wife filed suit for divorce, asking for custody of three minor children, child support and alimony. The husband filed a counterclaim for divorce and custody of the children.

After it was determined that the marriage was irretrievably broken, the case was tried before a jury in October, 1975, on the issues of permanent alimony and child support. The jury verdict provided that, if custody of the children is awarded to the wife, she would receive the use of the home until the youngest child, age 10, reached 18. At that time the house, which was jointly owned, would be sold and the proceeds divided equally between the husband and wife. The wife would make all house payments until that time. The verdict provided child support in the amount of 10-percent per child per week of the husband's gross weekly salary. The trial judge, in awarding custody to the wife, incorporated the jury's verdict into his order.

The wife appeals, contending that the child support award does not specify a definite amount as required by Code § 30-207 and is therefore illegal. She also contends that the jury verdict concerning the house is illegal because it requires the wife to make all the house payments, yet the house is to be sold at an uncertain future date and the income equally divided between the parties. She argues that this distribution of the equity she will have paid constitutes an illegal award of alimony from the wife to the husband, is contrary to the law, and is in excess of the authority of the jury and the court.

Code Ann. § 30-207 provides that in awarding alimony the jury shall 'specify what amount' the minor children shall be entitled to receive for their permanent support. The wife argues that this statute requires that a definite sum in a dollar amount be set as child support.

The issue of whether a jury award to be computed as a percentage of income is an award of a specified amount which complies with the statute has never been directly confronted by this court. The court has held that agreements executed between parties and incorporated into a divorce decree, specifying the amount of child support and containing provisions for automatic adjustment in accordance with fluctuations in the husband's income, or providing for child support to be computed as a percentage of the husband's taxable income, are enforceable in contempt proceedings. Paul v. Paul, 235 Ga. 382, 219 S.E.2d 736 (1975); Gray v. Gray, 222 Ga. 641, 151 S.E.2d 774 (1966); Kitchin v. Kitchin, 216 Ga. 619, 118 S.E.2d 462 (1961). Those cases are distinguishable from the present case in that they deal with the enforcement of contractual obligations in contempt proceedings whereas Code § 30-207 applies to jury awards of child support. Edwards v. Edwards, 235 Ga. 199, 219 S.E.2d 117 (1975), also was a contempt proceeding and the question of specified amount was not in issue. McClure v. McClure, 235 Ga. 119, 218 S.E.2d 850 (1975), did not involve child support.

The case of Golden v. Golden, 230 Ga. 867, 199 S.E.2d 796 (1973), upheld a jury award of child support in a definite amount of $225 per child per month subject to a provision for automatic increase or decrease in the amount of 16 2/3-percent of any increase or decrease in the husband's salary. The husband appealed on the basis that the verdict, insofar as it related to adjustments for...