Tillinghast v. Clay
| Decision Date | 21 February 1922 |
| Docket Number | 2485. |
| Parties | TILLINGHAST v. CLAY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Under the allegations in the equitable petition filed by the plaintiff in this case, he was not entitled to the relief sought, and the general demurrer to the petition should have been sustained.
Additional Syllabus by Editorial Staff.
So long as the verdict and decree in a divorce case and the judgment and decree founded thereon stand, equity cannot grant relief which impairs the effectiveness of the verdict and decree, as by declaring void an agreement on which the verdict and decree were based, enjoining the collection of alimony, and fixing the custody of a minor child, without setting them aside.
Where the decree in a divorce suit followed the verdict, it cannot be set aside wholly or in part, unless the veridct itself is set aside.
Where a verdict and decree in a divorce suit are obtained by fraud equity, on a petition brought within three years, as required by section 4358, Civ. Code 1910, will annul the decree.
A verdict and decree in a divorce suit, granting the wife a total divorce and $25 a month as permanent alimony until remarriage, and $25 a month for a child during its minority to be paid to the wife, and to be increased to $50 a month upon the wife's remarriage, though not expressly giving the wife the custody of the child, held to have that effect, especially when construed in connection with the husband's prayer that he be given the custody and control of the child upon the wife's remarriage, which was apparently denied.
The verdict and decree in a divorce suit are to have a reasonable intendment and when construction is necessary will be construed in the light of the pleadings.
A verdict and decree in a divorce suit, awarding the custody of a child to the wife, does not mean that the husband shall not be permitted to have reasonable opportunities of seeing the child and enjoying his company.
As a divorce decree, awarding alimony to the wife until remarriage and an allowance to a minor child, to be increased by the amount of the wife's alimony on her remarriage contemplated a remarriage, its provisions were not violated by the wife's removal to another state, so as to prevent her from enforcing the rights given her thereby.
If a wife to whom money for the support of a minor child is to be paid under a divorce decree does anything in violation of the decree justifying the husband's refusal to make further payments, such fact can be urged in opposition to the wife's application for a rule against the husband for nonpayment, and no equitable proceeding is necessary for such purpose.
Error from Superior Court, Cobb County; D. W. Blair, Judge.
Suit by E. H. Clay against M. L. Tillinghast. Judgment for plaintiff and defendant brings error. Reversed.
At the March term, 1918, of the superior court of Cobb county, the plaintiff in error obtained a divorce from the defendant in error. The decree taken in the case provided that the defendant in error should pay the plaintiff in error the sum of $25 per month as permanent alimony for herself so long as she remained a widow, and also should pay to her the sum of $25 per month as permanent alimony for the support of the minor son of the said parties. The decree further provided that, in the event of the remarriage of the plaintiff in error, the $25 per month alimony which was to be paid to the plaintiff in error for herself should be paid to her as permanent alimony for the minor child, in addition to the $25 to be paid under the decree as above set out, making $50 per month to be paid the plaintiff in error for permanent alimony for the minor child. After the rendition of the decree the plaintiff in error removed with the minor child to the state of Rhode Island, and there remarried. After her remarriage, and after she had removed from the state of Georgia, the plaintiff in error brought a rule against the defendant in error in the superior court of Cobb county, Ga., praying that he be adjudged in contempt of court for his failure to pay to her the money she alleged to be due as permanent alimony for the support of the minor child. In the petition for the rule it is alleged, after setting forth the verdict in the divorce suit, and that a decree was rendered in accordance with the terms of that verdict, that subsequently to the granting of said verdict and decree plaintiff in error had married on September 17, 1919, and is now a resident of the state of Rhode Island, and has the minor child in question with her there. The substance of a certain agreement entered into on May 10, 1917, and which is further referred to in the opinion is also set forth. Failure to make the pay ments as ordered in the decree after a specified date is also alleged, and there is a prayer for a rule nisi, and for such further orders as might be necessary to compel the defendant to comply with the decree. The defendant in error then filed a petition in said court, service thereof being made upon the attorney at law of record for the plaintiff in error, alleging that the plaintiff in error was not entitled to the custody of said child, on account of the facts alleged in said petition; that the contract under which she claimed the custody of said child had expired, and, if it had not expired by its own terms, it was null and void on account of the fraud perpetrated upon defendant in error in its procurement; and that the plaintiff in error was not a fit and proper person to have the custody of the child, for the reasons set out in the petition. It was prayed that said contract, if it had not expired by its own terms, be declared null and void; that the collection of alimony be enjoined so long as the plaintiff in error kept the child without the jurisdiction of the superior court of Cobb county; and that the court by decree fix the custody of the minor child.
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