Shepherd v. Shepherd
| Decision Date | 21 September 1967 |
| Docket Number | No. 24257,24257 |
| Parties | Charles Richard SHEPHERD v. Harriette Milam SHEPHERD. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The 1966 amendment to Code § 30-209 (Ga.L.1966, p. 160), providing for the termination of permanent alimony on the remarriage of the wife, is not applicable to the provisions of a contract between a husband and wife designated as 'property settlement.'
2. The nonpayment of alimony may be punished by contempt regardless of whether the final order of the court commands its payment, but the other provisions of a settlement agreement can not be enforced by contempt where neither the agreement nor the final decree commands the performance of such provision.
E. T. Hendon, Jr., Decatur, for appellant.
Mackay & Elliott, Thomas W. Elliott, Decatur, for appellee.
In a divorce proceeding in DeKalb Superior Court between Harriette Milam Shepherd and Charles Richard Shepherd, an agreement between the parties was made a part of the final decree on September 27, 1961. The decree was amended by a further agreement of the parties filed on January 8, 1963, and approved by the court. The original agreement recited that the 'parties desire by this instrument to settle all questions relating to child custody and support, alimony, property divisions and other matters, * * *' The amended agreement provided for the payment of $10 per month as alimony so long as Mrs. Shepherd remained unmarried, and $190 per month for a period of 104 months 'as property settlement.'
In a contempt proceeding by Mrs. Shepherd (now Hance) the trial judge adjudicated that Mr. Shepherd was in arrears in the sum of $4,960, which included two payments of $10 each on alimony which had accrued prior to Mrs. Shepherd's remarriage, the remainder being the property settlement of $190 per month. Mr. Shepherd was adjudged in contempt, and it was ordered that he might purge himself of contempt by paying the sum of $4,960 and attorney's fees of $350. The appeal is from this judgment.
1. At the time the agreement was entered into by the parties it was the law of this State that the remarriage of the wife did not terminate periodic payments of permanent alimony unless the contract or judgment so provided. Brown v. Farkas, 195 Ga. 653, 25 S.E.2d 411; Allen v. Withrow, 215 Ga. 388, 110 S.E.2d 663; Hinton v. Belew, 220 Ga. 189(1), 137 S.E.2d 650; Davis v. Welch, 220 Ga. 515, 140 S.E.2d 199; Holland v. Holland, 221 Ga. 418, 144 S.E.2d 753. The amended agreement shows the clear intention of the parties that the alimony payment of $10 per month would cease upon the remarriage of Mrs. Shepherd. The property settlement payment of $190 per month continued for a period of 104 months.
It is the contention of the appellant that under the amendment to Code § 30-209, approved March 4, 1966, (Ga.L.1966, p. 160), the payments of $190 per month terminated upon the date of the approval of the amendment, because of the remarriage of the appellee. This amendment provides: 'All obligations for permanent alimony to the wife, whether created by contract, verdict, judgment, or decree, the time for performance of which has not yet arrived, shall cease upon her remarriage unless otherwise provided in the decree.'
'Alimony is an allowance out of the...
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