Opinion
25744.
SUBMITTED APRIL 15, 1970.
DECIDED JULY 15, 1970.
Alimony; contempt. Fulton Superior Court. Before Judge Alverson.
Paul R. Koehler, for appellant.
Westmoreland, Hall Bryan, John L. Westmoreland, P. Joseph McGee, for appellee.
1. The Act of 1966, p. 160, does not relieve appellant from the payment of alimony for the reason that the Act was passed after the sum allotted to the wife became a fixed obligation of appellant, even though not due until after the passage of the Act, and because the Act has reference only to instalment payments in the future and not to a "lump sum" obligation.
2. Where there is no transcript of the proceedings which would show whether a hearing was had on the question of additional attorney's fees as a part of temporary alimony before the verdict in the divorce case, this court will presume that there was such a hearing, and that the court had jurisdiction to pass an order, after the verdict, awarding additional attorney's fees.
3. Even if the court erred in placing a condition (the giving of a supersedeas bond) on the granting of a supersedeas, since the record is silent as to whether the appellant filed such a bond or was incarcerated and was therefore harmed, such a judgment will not be reversed. Smith v. Smith, 224 Ga. 689, 692 ( 164 S.E.2d 225).
4. The evidence authorized the judge to find the appellant in contempt.
5. It was not error to order the appellant's imprisonment, on the failure to make the payments ordered, without a further judicial hearing.
SUBMITTED APRIL 15, 1970 — DECIDED JULY 15, 1970.
This is an appeal from an order of Fulton Superior Court entered on November 25, 1969, adjudicating appellant in contempt of court for failing to make a lump sum alimony payment as ordered by an October 3, 1963, order, as follows: $3,600 to appellee on or before April 1, 1967, plus $250 to appellee's attorney on or before July 1, 1964. The contempt order provided that contemnor could purge himself of contempt by paying one-half of the sums owed under the 1963 order to appellee and her attorney on or before January 1, 1970, and the remaining half of such sums on or before July 1, 1970. It also provided as follows: "In the event that the defendant does not make the payments on or before the dates as above provided, then and in that event, upon the plaintiff['s] filing an affidavit with the sheriff of this county that the said payment or payments have not been made as herein provided, the sheriff of this county is hereby ordered and directed to arrest the defendant and take him in custody and confine him to the common jail until he purges himself of the said contempt." The court entered a further order requiring a supersedeas bond in the amount of $2,289. The appellant filed his notice of appeal from the contempt order on December 11, 1969.
1. The contention that Georgia Laws 1966, p. 160, approved March 4, 1966 ( Code Ann. § 30-209) relieved appellant from the payment of the $3,600 alimony judgment of October 3, 1963, payable April 1, 1967, is without merit. This Act provides: "All obligations for permanent alimony to the wife, whether created by contract, verdict, judgment, or decree, the time for performance of which has not yet arrived, shall cease upon her remarriage unless otherwise provided in the decree." The amount fixed was a lump sum which was not contemplated by said Act and was a fixed and vested right of the appellee though not due until after the passage of said Act. The same rationale applies here as was applied in Candler v. Wilkerson, 223 Ga. 520 ( 156 S.E.2d 358). The Act relied on violated the constitutional provision against retroactive laws. Alimony in gross, or in a lump sum, is in the nature of a final property settlement, and hence in some jurisdictions is not included in the term "alimony," which in its strict or technical sense contemplates money payments at regular intervals. Parmly v. Parmly, 125 N.J. Eq. 545 ( 5 A.2d 789); 27A CJS 1074, Divorce, § 235.
2. The contention of appellant that a judgment for additional attorney's fees as temporary alimony was void because the court did not reserve jurisdiction of the case until after the jury verdict to render such a judgment is without merit. The award of attorney's fees upon the hearing on temporary alimony stated that the amount then awarded was "as part of the temporary alimony the sum of $250," to be paid on or before July 1, 1964. (Emphasis supplied.) This order did not sufficiently reserve the required jurisdiction to render judgment for additional attorney's fees, but since there was no reported transcript of all the proceedings brought up on this appeal, this court cannot know whether a hearing on additional alimony was had before the verdict or not and it is presumed that there was. See Proctor v. Proctor, 224 Ga. 450 ( 162 S.E.2d 398). The appellant shows no error as to this enumeration of error.
3. Headnote 3 requires no further discussion.
4. The evidence authorized the finding that the appellant could have paid at least a part of the judgment against him. Under the circumstances, the finding of contempt, together with the provisions for purging, does not show error.
5. The appellant contends that it was error to provide in the contempt order that he could be confined in jail, in the event he failed to make the payments at the times provided, on the filing with the sheriff of an affidavit by the appellee showing this fact, and without a further judicial hearing on the matter.
This court will not disturb the disposition of the trial judge in allowing the husband to purge himself of contempt in failing to pay alimony unless an abuse of discretion is shown. Smith v. Smith, 222 Ga. 313, 314 ( 149 S.E.2d 683). The giving to the husband of additional time to purge himself is a matter of grace to him and is not a matter of which he can complain. Roe v. Watson, 151 Ga. 365, 366 ( 106 S.E. 907).
It was not error to order the appellant's imprisonment, on his failure to make the payments ordered, without a further judicial hearing. Norvell v. Norvell, 192 Ga. 1 (3) ( 14 S.E.2d 440).
Judgment affirmed. All the Justices concur.