Opinion
12978.
OCTOBER 10, 1939. REHEARING DENIED NOVEMBER 17, 1939.
Equitable petition. Before Judge Rourke. Chatham superior court. May 29, 1939.
Oliver Oliver, for plaintiff in error.
Aaron Kravitch, Charles E. Donnelly, and McLaws, McLaws Brennan, contra.
Where a libel for divorce, brought by the husband against his wife, to which the wife filed her answer and cross-action asking for a judgment for temporary and permanent alimony, resulted in a total divorce between the parties and a judgment for alimony in a stated sum per month "until the retirement of the plaintiff by the railroad company," and a smaller sum per month thereafter, the judgment for alimony not providing for a lump sum, or that it become a lien on or be paid out of any particular scheduled property, or that any sum as alimony be paid after the husband's death, such divorced wife is not entitled, under her subsequent petition, to have canceled and set aside conveyances of real estate made by the husband to his children by a former marriage a few days before his suit for divorce was filed, on the ground alleged that such conveyances were made and accepted for the purpose of removing the property beyond the reach of any judgment for alimony which she might obtain; the petition not alleging that the former husband was in default with respect to any of the monthly payments specified in the decree. Similar allegations and prayers were made pending the divorce and alimony action, but were stricken on motion of the husband, on the ground, among others, that the grantees were not named and served as parties defendant. The general demurrer to the present petition praying that the deeds be canceled and set aside, and that petitioner's judgment for alimony be decreed to be a lien on said property, so as to afford her a monthly payment of alimony for and during her life, was properly sustained.
No. 12978. OCTOBER 10, 1939. REHEARING DENIED NOVEMBER 17, 1939.
In this petition brought by Mrs. Bessie Wallace against her former husband, R. E. Wallace, and his three daughters by a former marriage, she alleged that the divorce suit was brought against her by the husband, and that a few days before bringing it, but after their separation, he conveyed by deeds to the three daughters certain real estate; that in the divorce suit the wife who filed a cross-action asking for permanent alimony, sought to have canceled these conveyances, on the ground that they were made and accepted for the purpose of removing the property beyond the reach of any judgment for alimony which she might obtain, but that the trial court would not permit her to raise any such issue in that action, and dismissed that part of her cross-action, on motion of the defendant, on the ground, among others, that the grantees were not named and served as parties thereto. A total divorce was granted to the parties, and a verdict and judgment for permanent alimony in a stated sum per month, the judgment for alimony not providing for a lump sum, and not declaring that it become a lien or be paid out of any particular property. The present petition, after disclosing the foregoing facts, sets up that Wallace's codefendants conceived a bitter dislike for their stepmother and brought about friction between her and her husband, with a view of breaking up the marriage and depriving her of any interest she might have in the property of their father, and acquiring it for themselves; that these conveyances were the result of the design between Wallace and his daughters to deprive petitioner of any interest in all her husband's property and to remove it beyond the reach of any judgment for alimony which she might obtain against him; that all the defendants were insolvent, except for the real estate in question; that during her married life Wallace accumulated with her assistance, and placed in his own name, certain designated real estate; that for a number of years, in order to assist him in conserving his funds and accumulating property, she ran a rooming-house, furnished with her own furniture, and earned enough in that way to support both herself and the defendants, without further assistance from him; and that by thus working together she saved to the family all funds which would have gone to her support and maintenance and to the upkeep of the home, which would amount to approximately $90 per month. Her petition did not, however, seek to have an equitable estate decreed in her as to this property or any part of it, nor did it pray that a trust therein be set up. Her prayers were that the deeds be canceled; that the title be restored to R. E. Wallace; that petitioner's judgment for alimony be a lien attaching to the property; that defendants be enjoined from conveying or encumbering the property; that Wallace be required to pay reasonable attorney's fees; that a portion of the defendant's estate, equivalent to her interest therein, and sufficient to afford her $75 per month as alimony, be set apart to her during her life as a guaranty of the continuance of her support and the payment of her permanent alimony during the remainder of her life; and for general relief. All the defendants demurred generally and specially. The general demurrers were sustained, and the action was dismissed. Mrs. Wallace excepted.
The date of the verdict in the divorce suit fixing the amount and terms of the alimony was November 22, 1938. The present petition was filed on January 17, 1939. The petition contains no averment that the former husband has defaulted in any of the payments called for by the verdict and decree, or that he has threatened or intends so to do, or that he is less able now to meet the future instalments of alimony than he was the day the verdict was rendered. It was competent for the jury to award money as alimony, and it is not claimed that it was not within their power to make it payable in instalments. No lien by the judgment was expressly created on real estate of the husband. The petition is silent as to whether or not this property was scheduled by the husband; but presumably he did not schedule it, since he had transferred the title before filing the divorce suit. It was ruled in Chero-Cola Co. v. May, 169 Ga. 273 ( 149 S.E. 895, 66 A.L.R. 1469), that a judgment for permanent alimony, payable in stated monthly instalments and not for a fixed gross sum, does not create a lien for future monthly instalments on real estate, where no lien is expressly created upon such property in the judgment for alimony. The provision of section 30-112 of the Code does not affect the husband's conveyance after separation, but before suit for divorce is filed, as in the instant case. That section reads as follows: "After suit for divorce has been filed, no transfer by the husband of any of the property, except bona fide in payment of pre-existing debts, shall pass the title so as to avoid the vesting thereof according to the final verdict of the jury in the cause." "The restriction upon the free alienation of property by the owner is contrary to public policy and will not be extended by construction beyond the plain intent and meaning of the law." Perry v. First Mutual Building Loan Association, 174 Ga. 914 ( 164 S.E. 804), and cit. The prayer of petitioner, that, "in accordance with the law, a portion of the defendant's estate, equivalent to her interest therein, and sufficient to afford her $75.00 per month as alimony, be set apart to petitioner during her life as a guaranty of the continuance of her support and the payment of her permanent alimony during the remainder of her life," can not be granted, for to do so would be to revise and annul in a separate proceeding the verdict of the jury granting permanent alimony; and this can not be done. Coffee v. Coffee, 101 Ga. 787 ( 28 S.E. 977). The verdict, unexpected to, becomes final. The jury not having provided that the judgment for alimony be payable out of particular property, or that future instalments be a special lien against any property of the husband, the petitioner can not be aided in this respect by a court of equity.
But it is said, that, independent of any right given to her by the divorce and alimony statutes, the money judgment for alimony gives her the status of a creditor who has the right to go into equity and have canceled a fraudulent conveyance made to defraud her of her right. Compare Stephens v. Stephens, 168 Ga. 630 (1 a) (148 S.E. 522). We concede that a party may make a conveyance with actual intent to defraud a future creditor or to defeat a debt which, though contemplated, is not yet in actual existence. Sullivan v. Ginsberg, 180 Ga. 840 (1 b), 845 (181 S.E. 163), and cit. Unless, however, the creditor is hurt by the fraudulent conveyance, relief will be denied. How has the former wife been hurt? The former husband has not failed or refused to meet the instalments as they become due. He is not alleged to be in arrears a single cent; and in the absence of a threat or purpose on his part to cease the payments, her present effort to attack the fraudulent conveyance is premature. Taking, as we do on demurrer, her every averment to be true, and supposing the deeds were set aside, what is to hinder him in furtherance of his original design from selling the same property to some innocent person, and putting the money in his pocket beyond the reach of a levy? The remedy of contempt, if the facts justified it, could be applied, of course; but so it could even if, without granting the relief here prayed for, he without just cause refuses to meet, when they become due, the future instalments. The petitioner is not entitled to cancellation, on the doctrine referred to in Stephens v. Stephens, supra, because she shows no damage, and no threatened damage. In the Stephens case it was alleged that the divorced husband was in arrears several hundred dollars in his alimony payments. The petition was properly dismissed on general demurrer.
Judgment affirmed. All the Justices concur.