Fauver v. Hemperly

173 S.E. 82, 178 Ga. 424, 1934 Ga. LEXIS 64

• Court: Supreme Court of Georgia
• Decided: February 15, 1934
• Docket: Nos. 9612, 9613
• Status: Published

Opinion

Bell, J.

1. The statute, of limitations does not apply to a judgment for temporary alimony. Fischer v. Fischer, 164 Ga. 81 (3) (137 S. E. 821) ; Morrow v. Wainwright, 177 Ga. 100 (169 S. E. 310 ). Aliter, as to permanent alimony. Landis v. Sanner, 146 Ga. 606 (91 S. E. 688) ; Heakes v. Heakes, 157 Ga. 863 (122 S. E. 777); Civil Code (1910), § 5434.

2. The wife, by removing to Alabama and obtaining a total divorce in that State, necessarily abandoned the suit for divorce which she had filed in the State of Georgia.. After the abandonment of this suit, she was no longer entitled to enforce the judgment for temporary alimony previously rendered therein, except as to installments then due and unpaid. Stoner v. Stoner, 134 Ga. 368 (4) (67 S. E. 1030) ; Phillips v. Phillips, 146 Ga. 61 (90 S. E. 379) ; Osborne v. Osborne, 146 Ga. 344 (91 S. E. 61); Brightwell v. Brightwell, 161 Ga. 89 (2) (129 S. E. 658); Pace v. Berquisi, 173 Ga. 112 (159 S. E. 678) ; Johnson v. Johnson, 131 Ga. 606 (3) (62 S. E. 1044); Joyner v. Joyner, 131 Ga. 217 (3) (62 S. E. 182, 18 L. R. A. (N. S.) 647, 127 Am. St. R. 220).

3. The ruling just stated is not altered by the fact that the award was in favor of the wife for the support of herself and the minor children. On this question the ease differs from Akin v. Akin, 163 Ga. 18 (4) (135 S. E. 402), where the judgment was for permanent alimony, the distinction being that temporary alimony, whether for the wife or the children, can be claimed only in connection with a valid suit for divorce or for permanent alimony. Stallings v. Stallings, 127 Ga. 464 (56 S. E. 469, 9 L. R. A. (N. S.) 593) ; Watson v. Watson, 168 Ga. 573 (148 S. E. 386); Pace v. Berquist, supra.

4. As to the installments of alimony which became due before the abandonment of the Georgia suit, the right to enforce the judgment subsisted and execution properly issued therefor. Jones v. Jones, 145 Ga. 714 (2) (89 S. E. 161) ; Coulter v. Lumpkin, 94 Ga. 225 (21 S. E. 461). Gibson v. Patterson, 75 Ga. 549 (2) ; Sheppard v. Sheppard, 99 App. Div. 308 (90 N. Y. S. 982). However, there are some authorities contrary to this ruling. See cases cited in 19 C. J. 221, § 530.

5. While the execution was authorized as to ;the installments which became due and were unpaid at the abandonment of the suit filed in this State, it should not have included the installments which thereafter became due; but since the correct amount was definitely ascertainable, the execution was not void, and could have been amended by striking the excess. It was also a mere irregularity that execution was issued in favor of the former wife as next friend for the minor children. Raines v. Raines, 138 Ga. 790 (2) (76 S. E. 51); Stephens v. Stephens, 171 Ga. 590, 592 (156 S. E. 188).

Nos. 9612, 9613. February 15, 1934. Rehearing denied March 3, 1934.

6. The petition to avoid the judgment and execution for alimony did not allege sufficient facts to show a contract relieving the husband of this liability.

7. Under the foregoing rulings, the judge erred in cancelling the fi. fa. in its entirety.

8. After the divorce the wife occupied the position of a third person with respect to expenditures for the support of the children, and could recover therefor only as a stranger might do. ' Garrett v. Garrett, 172 Ga. 812 (159 S. E. 255), and cit. The cross-action filed by the former wife to recover on this account was not germane to the suit of the former husband to cancel the judgment and execution for temporary alimony. The cross-action therefore was not maintainable, and should have been dismissed on general demurrer. Usry v. Hines-Yelton Lumber Co., 176 Ga. 660 (2 b), 669 (168 S. E. 249).

Judgment reversed on both bills of exceptions.

All the Justices concur. F. L. Breen, for plaintiff. J. If. Jordan, for defendant.