Opinion
18219.
SUBMITTED MAY 13, 1953.
DECIDED JUNE 8, 1953.
Alimony; contempt. Before Judge Pharr. Fulton Superior Court. March 11, 1953.
James H. Dodgen, for plaintiff in error.
Alton L. Hawk, contra.
1. An amendment to the wife's petition, alleging that the child of the parties had been born subsequently to the filing of the divorce action, and praying for permanent alimony for the support of the child, would have been germane to her action for divorce and alimony. Any lack of pleadings or prayers was cured by the judgment and decree, and that part of the judgment awarding alimony for the minor child is not void. Auld v. Schmelz, 199 Ga. 633 (2) ( 34 S.E.2d 860); Barbee v. Barbee, 201 Ga. 763, 768 ( 41 S.E.2d 126); Armstrong v. Armstrong, 206 Ga. 540 ( 57 S.E.2d 668); Guthas v. Guthas, 207 Ga. 177 ( 60 S.E.2d 370).
( a) It will be presumed that the judgment for alimony for the support and maintenance of the minor child was based on sufficient evidence. Moss Co. v. Stokeley, 95 Ga. 675, 676 ( 22 S.E. 692); Mell v. McNulty, 185 Ga. 343, 344 ( 195 S.E. 181).
2. The trial judge did not err in finding the defendant in contempt of court for failure to make the payments for the support of his minor child.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
No. 18219. SUBMITTED MAY 13, 1953 — DECIDED JUNE 8, 1953.
On July 11, 1951, Martha Jane Nichols filed a petition in Fulton Superior Court against her husband, William Claude Nichols. She alleged: That the defendant was a resident of Fulton County. The cruel treatment of the defendant had forced her to separate from him. She was then pregnant, and asked that the court grant her temporary alimony in the sum of $25 per week, besides $125 for maternity expense, and $150 as attorney's fees. She further asked that the court grant her "such other and further sums as the court may deem proper and necessary as permanent alimony." At the conclusion of the petition, the designated prayers were: for process; for an order directing the defendant to answer her demands for temporary alimony, lying-in expense, and attorney's fees; for an injunction restraining the defendant from molesting her; and that she have a total divorce from the defendant and custody of the child. The defendant was personally served.
On December 4, 1951, the trial judge entered a decree, in which the plaintiff was granted a divorce, and the defendant was not given the right to remarry. The defendant was ordered to pay $20 per week as permanent alimony for the support and maintenance of his child, Devona Illene Nichols, until she reaches the age of 21 years. Custody of the child was awarded to the plaintiff, and certain personal property was awarded to her as permanent alimony.
On February 13, 1953, a rule nisi was duly issued on the application of Mrs. Nichols, requiring the former husband to show cause why he should not be adjudged in contempt for failure to pay the alimony of $20 per week, it being alleged that he was in arrears in the sum of $1200.
At the hearing the former husband made an oral motion to dismiss the citation on the ground that the order of December 4, 1951, was null and void, in that the order provided for the payment of alimony for a child named Devona Illene Nichols, that there was no amendment filed to the wife's petition showing that the child had been born, there were no pleadings in the case authorizing the court to provide alimony for a child not disclosed in the pleadings, and there was no prayer in the original petition for permanent alimony.
The trial judge overruled the motion to dismiss and held the defendant in contempt. The exception is to that judgment.