Sells v. Sells, 17004

• Decision Date: 14 March 1950
• Docket Number: No. 17004,17004
• Citation: 58 S.E.2d 186,206 Ga. 650
• Parties: SELLS v. SELLS.
• Court: Georgia Supreme Court

Page 186

58 S.E.2d 186

206 Ga. 650

SELLS v. SELLS.

No. 17004.

Supreme Court of Georgia.

March 14, 1950.

Hudson & LeCraw, John H. Hudson, J. Walter LeCraw, all of Atlanta, for plaintiff in error.

Ralph R. Quillian, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

WYATT, Justice.

Mrs. Pearl E. Sells filed her petition against B. A. J. Sells, her husband, seeking temporary and permanent alimony. The defendant answered, alleging that, after the separation had taken place, the parties had entered into a written agreement which settled the defendant's liability for temporary and permanent alimony. The agreement, which was attached to and made a part of the defendant's answer, provided for an immediate cash payment of $1400 and for monthly payments of $50 for and during the life of the plaintiff. The agreement also provided, 'in the event Mrs. B. A. J. Sells should enter suit for divorce, that B. A. J. Sells shall pay the said Mrs. B. A. J. Sells the sum of $100 on account of attorney's fees.' The agreement further provided that, in the event either party instituted divorce proceedings, this agreement should become a part of the final decree. The defendant alleges in his answer that he has complied with the terms of the agreement, that the plaintiff has received its benefits, and that he is entitled to have the agreement made the judgment of the court in this action. The plaintiff demurred to the answer as amended. The demurrer was overruled, and the plaintiff excepted pendente lite. The case then came on for trial, and a jury was called to the box for the trial of the case. The plaintiff then sought to amend her petition so as to allege that the contract entered into by the parties was suggested by the defendant for the purpose of promoting the dissolution of the marriage and was therefore void; and that, when the contract was entered into, she thought it was a temporary agreement, and that she was misled by the defendant and his friend, who drew up the contract, and in whom she had confidence. This amendment was disallowed by the judge in the court below. At the same time, and without submission of any evidence to the jury, the trial court directed a verdict for the defendant finding the contract valid and in full settlement of all questions of alimony between the parties, both temporary and permanent, and judgment was entered thereupon. The exceptions are to the overruling of the plaintiff's demurrer to the answer as amended, to the denial of the plaintiff's amendment, to the direction of a verdict for the defendant, and to the judgment entered thereon. Held:

1. The parties to this action treat the question of the validity or invalidity of the contract settling alimony questions between the parties as determinative of the correctness of the rulings of the court below, overruling the demurrer to the answer, and disallowing the plaintiff's amendment to her petition. It will be so treated here. "A contract between husband and wife, made with the intention of promoting a dissolution of the marriage relation,' is contrary to public policy and void. Birch v. Anthony, 109 Ga. 349, 34 S.E. 561, 77 Am.St.Rep. 379. But a contract providing for the wife's maintenance, made after a separation has taken place, or immediately before a separation which has already been determined upon, is valid and enforceable.' Summer v. Summer, 121 Ga. 1, 5, 48 S.E. 727, 729, and cases there cited. The provision in this case for attorney's fees for the wife, in the event she should in the future seek a divorce, does not alter the result. See Melton v. Hubbard, 135 Ga. 128, 68 S.E. 1101. Under these...