Opinion
37163.
DECIDED JUNE 23, 1958.
Action to recover past due alimony payments. Clayton Superior Court. Before Judge Reynolds. February 17, 1958.
Albert B. Wallace, for plaintiff in error.
Samuel L. Eplan, Charlie Franco, contra.
An answer of a defendant alleging an agreement of settlement between him and his former wife (where no judgment has been rendered upon such agreement), and not merged into the alimony verdict and judgment, can not be used as a basis of reducing alimony payments ordered in the decree and judgment of alimony and was subject to general demurrer for that reason.
DECIDED JUNE 23, 1958.
Christine M. Van Deventer filed a suit against Ted Sebastian Meza to recover back alimony allegedly due the plaintiff by the defendant.
Paragraph 3 of the petition alleges that on July 26, 1955, the plaintiff was granted a final judgment of divorce and the marriage between the parties was dissolved thereby and also the plaintiff was permitted to resume her maiden name of Christine Van Deventer.
Paragraph 4 alleges that under the provisions of the said judgment of divorce the defendant was ordered to pay to the plaintiff $40 per week.
Paragraph 5 alleges that the defendant is indebted to the plaintiff by reason of his failure and refusal to make payments to the plaintiff as provided in said judgment of divorce the total sum of $2,040 up to the present time, he having failed to make the payments for 51 weeks. (By amendment this sum was changed to $3,400 covering 85 weeks).
Paragraph 6 alleges that demand had been made and payment refused.
The defendant answered denying that he was indebted in any amount and denied that demand had been made and payment refused. The defendant further answered as follows: "Further answering the defendant would show that approximately two years before the alleged filing of the divorce proceeding, plaintiff and defendant entered into an agreement wherein defendant agreed to convey to the plaintiff a home and to pay her during the minority of the daughter of plaintiff and defendant, the sum of $160 per month for upkeep of said home, provided plaintiff maintain said home for herself and the daughter of plaintiff and defendant; that defendant carried out his part of the agreement, conveying a home to the plaintiff and made payments under the terms of said agreement, to the plaintiff for a period extending to the latter part of 1955, at the rate of $160 per month; that said agreement provided that the conveyance of said home and the payment of the upkeep thereof, at the rate of $160 per month, for so long as said home was maintained for the plaintiff and said daughter, was in complete settlement of all claims for alimony and settlement of all property rights between the parties; that this defendant learned that the plaintiff had sold his home and no longer maintained it under the terms of said agreement and that this defendant promptly, upon ascertaining the truth of said information, ceased to make any further payments; that plaintiff was desirous of obtaining a divorce and this defendant gave her a check for attorney's fees and costs to defray the expenses of such divorce and was notified to go to the office of plaintiff's attorney and sign some papers, which this defendant did without reading what was signed and to the best of this defendant's recollection, without receiving a copy thereof; that this defendant has been recently advised that, in strict violation of the agreement between plaintiff and defendant, said petition sought, in addition to divorce, alimony; that this defendant did not know of plaintiff's intention to sue for alimony nor of plaintiff's suit for alimony nor for any alleged judgment for alimony until about the time of the filing of this suit in Clayton County, Georgia; that this defendant has never made any payments on the alleged judgment nor ratified the same in any way."
By amendment to the answer the defendant prayed that certain sums which he had paid prior to the divorce decree be set off against the plaintiff's demands and further admitted that he had paid no alimony since January, 1956.
Paragraph 7 of this amendment to the answer reads: "Further answering, defendant shows that on or about the 15th of December, 1953, at the family home of the defendant in Cresskill, N. J., the plaintiff informed the defendant of her intention of filing suit in the courts of New Jersey for a divorce, and that as a consequence of the matter, the defendant and the plaintiff entered into an agreement respecting the disposition of property acquired during the marriage and a settlement of any and all claims for alimony or support."
Paragraph 8 of the answer alleges that the defendant agreed that if the plaintiff would maintain the Meza family home in Cresskill, N. J., for the daughter until she should marry, foregoing any claim for alimony and support, then the defendant would deed to the plaintiff the title to said property including all furniture, fixtures, and furnishings, all of which had been paid for by the defendant; and in addition the defendant would give to the plaintiff a new car and would furnish to her $160 per month so long as the said home was maintained as a home for the daughter.
Paragraph 9 alleges that the home was reasonably worth $20,000 and the furniture and fixtures were reasonably worth $9,000.
Paragraph 10 alleges that the said agreement further contemplated that the wife would procure an attorney and that the defendant would leave his job, even though he might be playing an engagement in some distant State, and come to Cresskill, New Jersey to accept service.
Paragraph 11 alleges that on December 19, 1953, he purchased a 1954 Packard automobile for $3,300 and turned it over to his wife in compliance with the terms of said agreement.
Paragraph 12 alleges that on January 24th, 1954, the defendant executed a deed to the brother-in-law and sister of the plaintiff, turning over the said Meza home to said persons.
Paragraph 13 alleges that the said deed was prepared, executed and recorded according to the plaintiff's request.
Paragraph 14 alleges that in further compliance with said agreement the defendant commenced to furnish the plaintiff the sum of $160 per month, such cash disbursements continuing until December 31, 1955.
Paragraph 15 alleges that all during the year 1954 the defendant inquired of the plaintiff regarding the progress of the divorce suit, but no action was taken by the plaintiff, so far as is known by the defendant.
Paragraph 16 alleges that on February 17, 1955, the defendant received notice in Atlanta, Georgia, from the plaintiff "regarding important development" and that thereafter, from Tampa, Florida, on March 7, 1955, the defendant flew to New Jersey and accepted service of the divorce action.
Paragraph 17 alleges that thereafter the defendant continued to furnish the plaintiff $160 per month as per the agreement.
Paragraph 18 alleges that in December 1955, the defendant learned that the plaintiff had sold the Cresskill home for $20,000, despite the fact that the minor daughter had not married or otherwise become emancipated, and that the plaintiff had moved to Michigan, whereupon he then and there discontinued the remittance of the $160 each month to his former wife.
Paragraph 19 reads as follows: "Defendant shows that he now learns, through the plaintiff's petition, that in complete disregard of the agreement made and entered into by the parties, which agreement had been fully executed by the defendant, the plaintiff breached said agreement by applying to and receiving from the superior court of New Jersey, Chancery Div., Bergen County, a judgment for alimony in the amount of $40 per week."
Paragraph 20 alleges that the plaintiff has not offered to return the home which the defendant deeded away according to the plaintiff's instructions, nor has she offered to return the automobile which he gave her in December 1953 nor has she offered to pay the defendant the reasonable value of said real and personal property.
Paragraph 21 alleges the plaintiff to be a nonresident of the State of Georgia.
Paragraph 22 alleges that, due to breach of their agreement, the plaintiff has damaged the defendant in the amount of $32,500, and the defendant prays that this sum be set off against the plaintiff's demands and that he may recover judgment against the plaintiff for the excess amount of his said demand over the demand of the plaintiff sued on, and that this amendment be allowed by the court.
The following paragraphs were added to the answer by a second amendment: "For further plea and answer defendant shows that he has only recently obtained and exemplified copy of the divorce petition filed by the plaintiff here against the defendant in the Superior Court of New Jersey, Chancery Division, Bergen County, which petition sought to obtain a dissolution of the marriage existing at the time of the filing thereof between the plaintiff and the defendant."
Paragraph 24 alleges that a copy of the petition was attached to the amendment as an exhibit.
Paragraph 25 reads as follows: "Said petition shows in paragraph 7 thereof as follows: `Plaintiff has no means of support for herself and for said child of the marriage and is seeking alimony in this action and support for said infant child."
Paragraph 26 reads: "In the prayers of said petition plaintiff prays as follows: `Wherefore, plaintiff demands judgment: . . . B. Compelling the defendant to support the plaintiff and infant child of the marriage . . .'"
Paragraph 27 reads: "That in the judgment nisi, or award of temporary alimony, the Superior Court of New Jersey has entered an award as follows: `It is further ordered and adjudged that defendant pay to the plaintiff the sum of $40 per week, from and after the date of this order, as and for the support and maintenance of herself; no application now being made for the infant child of said marriage in her custody; and . . .'"
Paragraph 28 reads: "That in the original petition filed by the plaintiff application was made for the support of said minor child, and there was no amendment filed by the plaintiff subsequent to the filing of the original petition striking such application or otherwise limiting the prayer for support of said minor child."
Paragraph 29 reads: "That nevertheless on account of the facts hereinabove alleged the plaintiff did procure an alimony judgment, solely and exclusively in favor of herself, insofar as the defendant is able to learn, which judgment was procured by fraud on the Superior Court of New Jersey and on the defendant here."
Paragraph 30 reads: "The said judgment nisi, or temporary award, was made the final award, insofar as the defendant is able to learn, and said final judgment, on account of the facts hereinabove alleged amounted to fraud in the procurement thereof. Wherefore, defendant prays that this amendment be allowed and that the judgment as alleged by the plaintiff be set aside.
The plaintiff filed a general demurrer to the second amendment to the answer which the court sustained. The answer was ordered stricken.
The case proceeded to a jury, resulting in a verdict in favor of the plaintiff for $4,715. The judge entered the following directed judgment: "The within matter coming on for trial and after hearing testimony before the jury, and all the evidence submitted by the plaintiff and no evidence submitted by the defendant in defense, it is hereby ordered and adjudged by the court direct a verdict in favor of the plaintiff, Christine M. Van Deventer, and against the defendant, Ted Sebastian Meza, in the amount of $4715 principal, plus costs of court, and a verdict of the jury having so entered, it is hereby adjudged, and decree that the verdict of the jury be made the judgment of this court."
The defendant assigns error on the sustaining of the general demurrer to the answer and the resulting striking of the answer, as well as the directed verdict in favor of the plaintiff and against the defendant.
1. We have set out the pleadings in this case somewhat in detail. These pleadings show that a suit was filed to recover past due payments on an alimony judgment. The record shows that $965 had been paid, but that in addition to that amount there was $4,715 due; that the jury heard the evidence and that the court directed a verdict in favor of the plaintiff and entered a judgment against the defendant for $4,715. The defendant was served personally with the petition for divorce and alimony. Counsel for the defendant contends that, since the court sustained the plaintiff's general demurrer to the answer and struck the answer, the defendant was thereby prohibited from proving setoff and recoupment and also fraud on the part of the plaintiff in obtaining the divorce. The record does not show that the alleged oral contract upon which the defendant bases his defense was merged into and made a part of the decree rendered in the divorce proceedings. For this reason said allegations in the answer are of no avail, and Code (Ann.) § 81-301, cited by counsel for the defendant, is not applicable. The provisions of Code § 20-1301 were adhered to by allowing the setoff of payments made after the alimony decree and judgment, but this Code section cannot apply where such payment is made on an oral contract before an alimony judgment and not set up in the pleadings at the time of the alimony trial. Payments made before the alimony judgment are res judicata so far as the record now before us is concerned. Reisman v. Massey, 84 Ga. App. 796 ( 67 S.E.2d 585) shows that a real-estate broker attempted to collect commissions for the sale of property to a certain buyer. The seller answered that the prospective purchaser produced by the broker was financially unable to pay for the property. The broker filed a general demurrer to the answer. The court overruled the demurrer because the whole issue of that case was whether or not the broker had produced a buyer "ready, able and willing to buy" (Code § 4-213), and the answer showed that the prospective purchaser did not meet one of the requirements of that Code section. That case is not authority for reversing the case at bar wherein the answer claims a setoff which occurred prior to the divorce decree and judgment. Nor is Ocean Steamship Co. v. Anderson, 112 Ga. 835 ( 38 S.E. 102) in point, due to the difference between pleadings here and there. In the case at bar it does not matter whether the defendant is a nonresident. Hecht v. Snook Austin Furniture Co., 114 Ga. 921 ( 41 S.E. 74) involved equity proceedings, and showed facts entirely different from the facts in the case at bar. Even if nonresidence does authorize a court of equity to decree a setoff (see Livingston v. Marshall, 82 Ga. 281, 11 S.E. 542, and Bibb Land-Lumber Co. v. Lima Machine Works, 104 Ga. 116, 30 S.E. 676) such relief would not result in the instant case, under the pleadings and the evidence. The defendant's recourse was to have the setoff considered in the divorce proceedings, not at this time. Furthermore, we will not consider the matter of fraud since no fraud is shown by the pleadings or the evidence. The defendant was served personally with a petition for divorce. In the instant case he failed to appear and defend.
In a divorce proceeding all prior agreements should be produced before the court and merged into the judgment. See Venable v. Craig, 44 Ga. 437 (2) which reads as follows: "Negotiations and agreements between husband and wife, pending a libel for divorce, as to the alimony of the wife, and agreements between them in relation thereto, are, by presumption of law, merged in the final verdict of the jury in the divorce suit, and a purchaser from the husband, pending a suit of property, mentioned in the schedule, is bound by the verdict, as is the husband, as to the legal rights of the wife to the property, unless he can show fraud in the verdict affecting his rights, and to do this, he must attach the judgment before the court which rendered it, as he is a privy thereto."
See also Raines v. Raines, 138 Ga. 790 (4) ( 76 S.E. 51) wherein the Supreme Court said: "An oral agreement that a wife will not claim alimony, made pending the proceeding for alimony and divorce, and before the grant of alimony, can not be asserted as a defense to the collection of the judgment for alimony." No judgment had been rendered in the instant case upon the alleged agreement of the parties. In Estes v. Estes, 192 Ga. 100 ( 14 S.E.2d 680), the Supreme Court was very emphatic in ruling that an understanding between a husband and wife, not incorporated into the divorce decree and judgment was not binding. The headnote of that case reads: "A judgment for alimony based upon an agreement of the parties provided that the husband should pay $55 per month to the wife for the support of herself and minor child, and awarded to the wife certain realty. The husband brought a petition seeking to have the court declare that the judgment had been fulfilled, and that no further payments were due thereunder, based upon an alleged understanding between the parties, at the time the agreement was entered into, that the payments provided for should cease upon the marriage or arrival at majority of the child. Held, that the petition was subject to general demurrer."
Under the pleadings as set forth in this record, the court did not err in sustaining the general demurrer and dismissing the answer of the defendant.
2. We have not set out the evidence in this case because it is all in favor of the plaintiff, the defendant having failed to present any evidence on his behalf. Suffice it to say that the evidence is sufficient to sustain the verdict of the jury and the directed verdict of the court based thereon.
Judgment affirmed. Townsend and Carlisle, JJ., concur.