Fischer v. Fischer

137 S.E. 821, 164 Ga. 81, 1927 Ga. LEXIS 128

• Court: Supreme Court of Georgia
• Decided: April 14, 1927
• Docket: No. 5617
• Status: Published

Opinion

Beck, P. J.

(After stating the foregoing facts.)

The evidence in the case was sufficient to authorize the holding and finding of the court upon the questions of fact involved, and there is no merit in the contention that such findings are contrary to evidence and without evidence to support them.

The court did not err in holding that the judgment for alimony is not void on the ground that it is uncertain and indefinite in that the judgment sought to be enforced does not specify what Eunount the minor child is entitled to for his permanent support. This question is ruled in the case of Cunningham v. Faulkner, 163 Ga. 19 (135 S. E. 403), where it was held: “The verdict and decree in the divorce case, upon which the present proceedings are based, were not void on the ground that the verdict allowing a stated sum as alimony for the support of the wife and child did not specify what amount the minor should be entitled to for its support, nor in- what manner, how often, nor to whom it should be paid.” While the judgment in this case which plaintiff in error insists is void does not specify for what period such alimony shall be paid, we think the meaning is that it shall be paid for as long a period as the law allows. The jury had the right to limit the time during which payments should be made, but they are not required to fix this limit for a less period than the life or widowhood of the wife; and consequently we hold that the alimony is to be paid so long as the wife live's, or until she remarries, unless there be such change of circumstances as, under the principles of law and equity, would authorize the husband to be relieved and the judgment be modified. “A decree for permanent alimony, without specifying the period during which it is to be paid, is valid and sufficiently certain, and will be construed as intending the payment of alimony to continue during the life of the divorced wife, or until modified by the court.” Hart v. Hart, 94 Cal. 254 (29 Pac. 774).

We do not think that the decree in this case awarding as alimony for the benefit of Mrs. Eischer and her minor child a sum payable in instalments is such a decree for money as is contemplated in section 5434 of the Civil Code, providing for the dormancy of decrees. We find decisions in outside jurisdictions holding that a judgment for alimony does not become 'dormant by failure to issue execution within the statutory period, as it is a continuing subsisting claim against the husband, which rests both on the adjudication of the court and also the obligations of the common-law liability of the husband to support his wife. This principle has been held by the courts of the State of Ohio and seems to be well recognized there, the Supreme Court of Ohio saying: “A decree for alimony in instalments is not a judgment within the meaning of section 5380, Eevised Statutes, which pro^ vides that a judgment on which execution has not issued for five years shaE- become dormant, nor is it a judgment within the meaning of section 5367, Eevised Statutes, which provides for the revivor of a dormant judgment, or a finding for money in any equitable proceeding.” Lemert v. Lemert, 72 Ohio St. 364 (74 N. E. 194, 106 Am. St. R. 621, 2 Ann. Cas. 914). See also Raines v. Raines, 138 Ga. 790 (76 S. E. 51). In the case of Bales v. Bales, 156 Ga. 679 (119 S. E. 635), it was said, dealing with a similar question to that we have here, “The demand of the plaintiff Avas not barred by the statute of limitations. Whether a demand of the character sought to be enforced here is ever barred by the lapse of time is not decided.” See also Tolman v. Leonard, 6 App. D. C. 224.

The rulings made in headnotes 4, 5, and 6 require no elaboration.

Judgment affirmed.

All the Justices concur, except Atkinson and Hines, JJ., who dissent from the ruling in the second division of the opinion, and consequently dissent from the judgment of affirmance.