Stanley v. Stanley

Supreme Court of Georgia

Stanley v. Stanley

260 S.E.2d 328, 244 Ga. 417, 1979 Ga. LEXIS 1258

CourtSupreme Court of Georgia

DecidedOctober 2, 1979

Docket35088

StatusPublished

Cited by2 cases

This text of 260 S.E.2d 328 (Stanley v. Stanley) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stanley v. Stanley, 260 S.E.2d 328, 244 Ga. 417, 1979 Ga. LEXIS 1258 (Ga. 1979).

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Opinion

*417 Per curiam.

This is a contempt case brought by the wife against the husband for failure to make payments on a note she alleges it was his duty to pay under their divorce decree. See Stanley v. Stanley, 240 Ga. 856 (242 SE2d 626) (1978). The trial court ruled in favor of the husband. She appeals. We reverse.

1. The trial court did not err in refusing to allow the wife to dismiss her petition. The husband’s answer raised against her an issue of contempt. Under Code Ann. § 81A-141(a), "[i]f a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the Court.” Arrendole v. Arrendole, 228 Ga. 295 (185 SE2d 83) (1971).

2. Under the divorce decree, the husband "shall be responsible and shall pay all obligations incurred by the parties during their marriage and prior to their separation on November 23, 1976, with the exception of the outstanding obligation for orthodontic work ...” (Emphasis supplied.) It is undisputed that the note in question was executed by the wife on September 24,1976, during the marriage. The decree clearly requires the husband to pay this obligation. The trial court has no authority in a contempt proceeding to modify the terms of a divorce decree. Sims v. Sims, 243 Ga. 276 (253 SE2d 763) (1979); Peppers v. Peppers, 238 Ga. 411 (233 SE2d 374) (1977). The trial court erred in holding otherwise.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Hill and Bowles, JJ., who dissent.

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*417 Per curiam.

This is a contempt case brought by the wife against the husband for failure to make payments on a note she alleges it was his duty to pay under their divorce decree. See Stanley v. Stanley, 240 Ga. 856 (242 SE2d 626) (1978). The trial court ruled in favor of the husband. She appeals. We reverse.

1. The trial court did not err in refusing to allow the wife to dismiss her petition. The husband’s answer raised against her an issue of contempt. Under Code Ann. § 81A-141(a), "[i]f a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the Court.” Arrendole v. Arrendole, 228 Ga. 295 (185 SE2d 83) (1971).

2. Under the divorce decree, the husband "shall be responsible and shall pay all obligations incurred by the parties during their marriage and prior to their separation on November 23, 1976, with the exception of the outstanding obligation for orthodontic work ...” (Emphasis supplied.) It is undisputed that the note in question was executed by the wife on September 24,1976, during the marriage. The decree clearly requires the husband to pay this obligation. The trial court has no authority in a contempt proceeding to modify the terms of a divorce decree. Sims v. Sims, 243 Ga. 276 (253 SE2d 763) (1979); Peppers v. Peppers, 238 Ga. 411 (233 SE2d 374) (1977). The trial court erred in holding otherwise.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Hill and Bowles, JJ., who dissent.

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260 S.E.2d 328, 244 Ga. 417, 1979 Ga. LEXIS 1258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanley-v-stanley-ga-1979.

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