Tillotson v. Tillotson

• Decision Date: 06 May 1971
• Docket Number: No. 26489,26489
• Citation: 227 Ga. 593,182 S.E.2d 114
• Parties: John TILLOTSON v. Joan Collard TILLOTSON.
• Court: Georgia Supreme Court

Page 114

182 S.E.2d 114

227 Ga. 593

John TILLOTSON v. Joan Collard TILLOTSON.

No. 26489.

Supreme Court of Georgia.

May 6, 1971.

Syllabus by the Court

1. The order of October 9, 1970, setting aside the final decree of April 2, 1970, was effective only as to the granting of a total divorce, since the award of permanent alimony and custody of children in that decree was based solely upon a purportedly written agreement between the parties, which was never properly executed.

2. The court erred in setting aside the decree of April 2, 1970, granting a total divorce between the parties.

3. The court erred in entering the order of November 16, 1970, granting temporary alimony for the support of the appellee and minor children.

4. The court erred in entering the order of January 4, 1971, adjudging appellant in contempt, since it had previously held its order requiring appellant to pay temporary alimony to be void.

5. On the return of the case to the trial court, direction is given that all issues in the case other than divorce be submitted for a new trial.

Larry Cohran, Atlanta, for appellant.

Erwin Mitchell, Dalton, James A. Mackay, Decatur, for appellee.

ALMAND, Chief Justice.

This appeal is from an order dated January 4, 1971, holding the appellant in contempt of court for failure to pay the appellee a stated amount as temporary alimony for her support and the support of the minor children. The appeal is also from seven orders issued prior to January 4, 1971.

In August, 1969, Joan C. Tillotson filed her complaint in Whitfield Superior Court against John Tillotson wherein she prayed: (a) for a total divorce; (b) temporary and permanent alimony for the support of herself and four minor children; (c) that she be awarded a described motor vehicle, household and kitchen furniture; (d) attorneys fees; (e) custody of the four children; (f) the defendant be required to pay the medical expenses of the children; and (g) fix her interest in a described house and lot. In response to a rule nisi the defendant appeared at an interlocutory hearing on September 30, 1969, at which time both parties were represented by counsel who informed the court that the parties had agreed on a settlement respecting temporary alimony, custody, visitation, use of dwelling, etc., but this agreement was not reduced to writing.

Thereafter, on January 8, 1970, both partis and their counsel appeared before the court on the prayers of the plaintiff and after hearing evidence, the court without the intervention of a jury, granted a total divorce. Both parties represented to the court that they had reached an agreement as to alimony and all other issues in the case and the agreement would be reduced to writing and filed.

On April 2, 1970, the court entered a final decree nunc pro tunc as of January 8, 1970, granting to the parties a total divorce and awarded custody of the children to the wife and permanent alimony for the support of herself and the minor children, 'in accordance with agreement between plaintiff and defendant, as reduced to writing and executed by the parties.' It does not appear that either party or their counsel was present when the decree was signed. At the time this decree was entered no such agreement had been entered into or executed by the parties.

On August 12, 1970, the plaintiff filed a motion in which she submitted a draft of a final decree which she alleged embodied the terms of an agreement to which she contended both parties had agreed, and prayed for a hearing.

On August 18, 1970, the appellee, former wife, filed a petition in the case to have the husband adjudged in contempt of court for failure to pay the alimony awarded in the decree of January 8, 1970. The appellant filed a motion to dismiss the appellee's motion on the ground that there was no valid order or judgment requiring him to pay alimony, since no agreement as to alimony had been entered into between the parties and filed in the court.

On September 11, 1970, the court, on its motion, issued a rule requiring the parties to show cause why the final judgment and decree dated April 2, 1970, nunc pro tunc as of January 8, 1970, should not be set aside. On a hearing of the court's motion the court on October 6, 1970, entered an order setting aside the final decree of April 2, 1970.

On October 20, 1970, the appellee filed a petition to adjudge the appellant in contempt for failure to comply with the order of September 30, 1970, as to temporary alimony. Attached to the motion appears to be a purported order of the court awarding the custody of the children to the appellee and temporary alimony in a stated sum and granting to her temporary possession of the home. On the hearing of the rule for contempt it developed that no order for the payment of alimony had been signed by the court. The record does not disclose that the appellant had any notice of a hearing on September 30, 1970.

At a hearing on November 16, 1970, relative to the motion for contempt for noncompliance with the purported order of September 30, 1970, the court, at a hearing with counsel for both parties present, over the objection of counsel for the appellant in this hearing, stated, 'that the purpose of this proceeding this afternoon is to refresh the court's memory as to the oral order of that date (September 30, 1970) in order that the temporary judgment might be entered nunc pro tunc.' The motion of counsel for appellee, for a continuance was denied.

It appears that the court entered an order on November 16, 1970, nunc pro tunc, granting temporary alimony.

After a hearing on January 4, 1971, on a rule for contempt for the alleged failure to comply with the order of November 16, 1970, the court adjudged the appellant in contempt of court and ordered him to be arrested if he did not pay the sum of $7,600 to the appellee by January 25, 1971. The first notice of appeal is from this order.

1. We first consider whether the order of October 9, 1970, setting aside the final decree of April 2, 1970, granting a divorce and purporting to award permanent alimony and custody of children, was a valid order. The appellant asserts that the court was without power or authority to vacate the decree on its own motion at a term subsequent to the term the decree was rendered.

Since it is plainly apparent that the decree entered on April 2, 1970 was wholly ineffective as to awarding permanent alimony and custody of children, in that the decree as to these matters was based upon a purportedly written agreement of the parties, filed in court, the order setting aside the decree was only effective as to setting aside the...