Stanton v. Stanton, 24261

• Decision Date: 05 October 1967
• Docket Number: No. 24261,24261
• Citation: 157 S.E.2d 453,223 Ga. 664
• Parties: Eugene STANTON, Jr. v. Ruby T. STANTON.
• Court: Georgia Supreme Court

Page 453

157 S.E.2d 453

223 Ga. 664

Eugene STANTON, Jr. v. Ruby T. STANTON.

No. 24261.

Supreme Court of Georgia.

Oct. 5, 1967.

Syllabus by the Court

1. There is no merit in the enumeration relating to the appellant's contention that by private agreement the appellee discharged him from the necessity of making the alimony payments provided by the decree.

2. The motive of the appellee in bringing the contempt proceeding is immaterial.

3. The evidence supported a finding that the appellant was able to pay the amounts required by the decree and that he was in arrears therein.

4. The decree relied upon here is one upon which contempt proceedings may be based.

5. The judgment in the contempt proceeding should have recited the amount found to be due under such decree and also the method by which the contemnor could purge himself.

B. Hugh Ansley, Paul L. Wayman, Atlanta, for appellant.

Frank P. Lappas, Atlanta, for appellee.

GRICE, Justice.

The enumeration of errors here arises from a judgment of contempt for failure to pay alimony and child support. The judgment was pursuant to a citation filed in the Superior Court of Bibb County by Mrs. Ruby T. Stanton against her former husband Eugene Stanton, Jr., alleging his wilful failure to make payments to her for the support of herself and their three children, as required by a decree, as modified. Enumerated as error are the exclusion of certain evidence, the failure to consider specified testimony, the rendition of stated findings, and the absence of a determination as to the amount due and the means for purging himself of the contempt.

1. We deal first with the enumerations relating to appellant's contention that he was not in contempt for failure to pay alimony to the wife because of their private agreement that he need not pay it.

(a) There is no merit in his complaint that the court should not have excluded a writing by appellee, allegedly reciting a forgiveness or voluntary discharge of his requirement under the decree to pay alimony for her benefit. The letter was written after the original 1960 divorce and alimony decree but before the appellant obtained its modification in 1962, which continued his obligation to provide for the appellee but reduced the amounts of the instalments. Under no theory could such a letter have constituted a forgiveness of sums due her under the modified decree.

(b) Nor is there any merit in his position that there was shown a voluntary departure by the parties from the strict terms of their original agreement and the subsequent decree based thereon, with payment and receipt of money thereunder, a quasi-new agreement. As to this, the evidence was in conflict. It authorized a finding that any departure from the terms of the agreement and decree was not voluntary and that there had been no payments to the appellee since the 1962 modification.

(c) Likewise without merit is his contention that the trial court erred in ruling that testimony as to employment of the parties' 14 year old son at a fruit stand which sold beer was admissible only for the purpose of showing whether there was a wilful contempt by the appellant, and was not admissible for showing any private agreement of the parties as to alimony. The child's employment was not showh to be in any way connected with any alleged private agreement as to alimony.

2. Appellant also urges that the trial court erred in rejecting and discarding as evidence worthy of consideration the motive of appellee in bringing this action. This enumeration is clearly without substance. The motive of the appellee is immaterial.

3. It is urged by appellant that the court failed to give effect to uncontradicted evidence with respect to his present ability to pay under the terms of the modified decree, and that it made a finding based upon uncertain, contradictory and mathematically impossible testimony by appellee as to the alleged arrearage.

Instead of uncontradicted evidence of inability, there was evidence that the appellant was able, from the 1962 modification which he sought and obtained until the filing of this proceeding in 1967, to make the payments required of him. During that time he remarried, maintained an apartment and established a business from which he and his present wife drew $8,000 in 1966. It was no defense that in 1967 at the hearing he testified that 'now' he could not pay what he owed under the decree.

As to the arrearage, the appellee testified that the appellant had not paid anything since the 1962 modification of the decree and that the arrearage amounted to more than $15,000, while he testified that he had made some...