Finch v. Finch

97 S.E.2d 576, 213 Ga. 199, 1957 Ga. LEXIS 340

• Court: Supreme Court of Georgia
• Decided: April 9, 1957
• Docket: 19644
• Status: Published

Opinions

Duckworth, Chief Justice.

“Alimony is an allowance out of the husband’s estate, made for the support of the wife when living separate from him. It is either temporary or permanent.” Code (Ann.) § 30-201. The obvious meaning of the foregoing must not be confused with anything said in Hayes v. Hayes, 191 Ga. 237 (11 S. E. 2d 764), where the question decided was whether the Supreme. Court or the Court of Appeals had jurisdiction of the writ of error seeking review of a judgment rendered in a suit by a former wife against her former husband based upon a contract between them settling her claim or right to alimony. The fundamental basis of the law is to require the husband to pay necessary expenses of his wife and minor children. Such payments, irrespective of the specific expense they satisfy, whether food or attorney’s fees, are all alimony, and are embraced in that term.

There simply is no law forbidding the voluntary payment pursuant to the terms of a contract between the parties instead of by order of court. Indeed the decisions of this court, in Folds v. Folds, 187 Ga. 463, 466 (1 S. E. 2d 4), and Cagle v. Justus, 196 Ga. 826 (28 S. E. 2d 255), and Code § 20-1205, leave no doubt but that law and equity not only allow but strongly encourage private settlements of family affairs. Where, as in this case, the indisputable facts show an agreement between the husband and wife, in the making of which the wife’s attorney participated and approved, and the trial judge expressed his approval — thus refuting any idea of fraud or unfairness — and that agreement expressly covers “temporary alimony” and has been performed at an expense to the husband of $9,000, as stipulated, which the wife accepted and now retains, when it has been fully performed by the husband, to impose upon him an additional payment of $4,500 attorney’s fees for his wife, would be unfair and would penalize him for performing his contract. As a matter of law “temporary alimony” includes attorney’s fees the same as food, and hence, the settlement of temporary alimony was a settlement of attorney’s fees. Thomas v. Smith, 185 Ga. 243 (194 S. E. 502); Brim v. Brim, 185 Ga. 359 (195 S. E. 157); Hamby v. Pye, 195 Ga. 366 (24 S. E. 2d 201); Murray v. Murray, 206 Ga. 702 (58 S. E. 2d 420). Judicial approval of the judgment excepted to would prevent all sensible husbands in the future from voluntarily agreeing with their wives on settling their obligations for temporary alimony. Thus would be left for courts to do what the best interest' of the parties and of society would demand that the parties do for themselves privately. The sworn testimony of the wife in this record is that she had an agreement with her husband to settle all her alimony for $450 per month, which meant temporary, as elsewhere shown in her testimony.

The provisions of Code (Ann.) § 30-211 for the husband in cases of (1) voluntary separation, or (2) where the wife is abandoned or driven off by the husband to- voluntarily, by deed, make adequate provisions for the wife’s support and thereby bar “her right to permanent alimony,” must not be confused with temporary-alimony settlements. There is no express statutory law dealing with settlements of temporary alimony. But expressions of this court leave no doubt but that they are lawful and enforceable as a bar to the wife’s recovering temporary alimony in court. McLaren v. McLaren, 33 Ga. (Supp.) 99; Apperson v. Apperson, 169 Ga. 593 (150 S. E. 827).

Although the agreement contained no authorization that it be made the judgment of the court, and hence the court could not lawfully make it such, the abortive attempt to make it such was no valid legal basis for the subsequent judgment awarding additional attorney’s fees. Having thus found that the parties by contract had settled temporary alimony, which all lawyers know includes attorney’s fees, the judge could allow an additional sum as counsel fees only by repudiating the approval just given, and even the law itself. But his order thereinafter to pay $500 on attorney’s fees can be construed consistently with the previous portion thereof which approved the settlement of temporary alimony by holding that it meant for this $500 to come from the total amount covered by the approved agreement. We will not attribute to the judge a lack of knowledge of the legal meaning of the agreement to include attorney’s fees, nor an intention to render an illegal judgment. Accordingly, we hold that no previous lawful judgment awarding temporary alimony had been entered, and consequently the judgment awarding additional attorney’s fees and expenses of litigation was contrary to law and is reversed.

Judgment reversed.

All the Justices concur, except Wyatt, P. J., Almand and Mobley, JJ., who dissent.