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Kirchman v. Kirchman

Supreme Court of Georgia
Jul 10, 1956
93 S.E.2d 685 (Ga. 1956)


In Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956), the court stated that a criminal prosecution for abandonment was not a civil remedy to enforce a minor child's right to support.

Summary of this case from In re Rollins



ARGUED JUNE 12, 1956.

DECIDED JULY 10, 1956.

Equitable petition. Before Judge Thomas. Glynn Superior Court. April 19, 1956.

G. B. Cowart, for plaintiff in error.

V. E. Mitchell, A. A. Nathan, contra.

1. A mere privilege to sue at law, or the existence of a common-law remedy not as complete or effectual as the equitable relief, shall not deprive equity of jurisdiction. Code § 37-120.

2. Equity has jurisdiction to enforce judgments and decrees for alimony where the remedy at law is inadequate or incomplete.

ARGUED JUNE 12, 1956 — DECIDED JULY 10, 1956.

Mrs. Grace Patterson Kirchman brought an action in Glynn Superior Court against Herbert Kirchman, a nonresident. The petition alleged: Prior to May 9, 1955, the petitioner and the defendant were husband and wife, and both resided in Glynn County. On that date the petitioner was granted a divorce from the defendant, and an agreement entered into between the parties was made the judgment of the court. Under this agreement the petitioner was given the custody of their two minor children, twin boys, now seven years of age, and provision was made for the defendant to pay the petitioner $300 per month for the support of herself and the children until they reached the age of 21 years, with the further agreement that twelve months after the defendant re-entered the practice of his profession of medicine these payments would be increased to $400 per month. The defendant is now preparing to take the Florida State Medical Board examination, and it is anticipated that he will have again engaged in medical practice for the period of twelve months by May, 1957. Under the judgment of the court in the alimony case, the defendant has a total liability to the petitioner over the period of 14 years of $64,800. The defendant is now beyond the jurisdiction of the court in so far as contempt proceedings are concerned. On August 19, 1955, she caused an execution to issue in the sum of $300, which was entered on the general execution docket, covering the sum that had become due on June 27, 1955. On August 22, 1955, the Sheriff of Glynn County levied this execution on a trailer located in the county belonging to the defendant. The defendant surreptitiously caused the trailer to be removed. There is now due to the petitioner under her judgment the sum of $1,500, which the defendant fails and refuses to pay, and the defendant has laughed at and mocked her over the futility of her efforts to collect, and has informed her that "every penny she gets out of him will `have to be dragged out of him.'" The defendant is the owner of a one-half undivided interest in a described tract of land located in Glynn County; the petitioner is the owner of the other one-half interest. The defendant is now seeking to sell this property or his interest therein. The defendant's one-half interest in the property is worth approximately $12,500 to $15,000. The petitioner is informed and believes that the defendant has on deposit substantial sums of money in the Brunswick Federal Savings Loan Association and the Atlanta Federal Savings Loan Association, in Atlanta, Georgia. The defendant may have other assets within the State of Georgia. While the petitioner could have an execution issued for the amount of $1,500, now due her under the judgment, and have this execution levied upon the defendant's property in this State, it would give her no protection as to the remainder of her judgment, and a court of equity should take jurisdiction in the matter and appoint a receiver to take over all of the assets of the defendant which he may locate within the State of Georgia, convert the real estate into cash, and hold the proceeds of the real estate and such other assets as he may be able to locate, in order that they may be subjected to the petitioner's judgment. The petitioner has no adequate remedy at law, and unless a court of equity takes jurisdiction and a receiver be appointed, the defendant will thwart the judgment of the court and leave the petitioner without means of collecting her judgment.

The prayers were: that process issue; that a receiver be appointed to seize and take possession of the described real estate and any funds he may find within the State, and specifically those enumerated in the petition; that the property and funds seized by the receiver be held to apply to the payment of the petitioner's judgment as it matures; and for other relief.

A receiver was appointed to take possession of the assets of the defendant in the State of Georgia. The defendant was served by publication. He filed his general and special demurrers, and the trial judge sustained his general demurrers and dismissed the petition. The exception is to that judgment.

1. The petition alleges that the father and mother by agreement and contract, which was duly made the judgment of the court, settled the issue as to the custody of the two minor children and the amount of alimony the father should pay monthly for their support. The substantial issues made by the petition and the general demurrers are but two in number: First, can the right of the minor children to support from their father be enforced, and their rights under the alimony judgment be fully protected, in a court of law? Second, if there is no adequate remedy at law, as alleged, will the rules of equity jurisdiction apply? These questions will be considered in the order stated.

Code § 30-204 provides that an award of alimony may be enforced "by writ of fieri facias or by attachment for contempt." (See also § 37-123.) Code § 30-208 provides that decrees in favor of the children may be enforced in the same manner as those in favor of the wife. Counsel for the father insist that the above sections of the Code state the "true rule" for the enforcement of a judgment for alimony, and it is insisted that there is ample property upon which an execution could be levied and ample property which could be reached by process of garnishment. Code § 30-112, as amended by Ga. L. 1950, pp. 365, 366, and Code (Ann. Supp.) § 67-2801 (Ga. L. 1939, pp. 345, 346), pertaining to lis pendens, also cited by counsel for the father, are not germane to any issue in the present case, since it is not alleged that the father has sold, or attempted to sell, any of the property described.

From the allegations of the petition, which must be taken as true for the purposes of the general demurrers, there is no doubt but that the real estate alone would sell for an amount substantially in excess of the accumulated monthly instalments of $1,500. Counsel for the mother insists that, after payment of the expenses of the sale of the real estate and the accumulated instalments amounting to $1,500, it would be the duty of the sheriff to pay over to the father the remainder of the proceeds of the sale, and that there would be nothing to prevent him from taking the money beyond the jurisdiction of the court, and thus defeat liability for future monthly instalments. It is stated in the brief of counsel for the father, in response to this contention, that "We respectfully urge that he (the father) would have a right to such excess."

Whether or not named loan associations might be required to pay into court amounts held by them in the name of the father, by garnishment, based on the execution for unpaid monthly instalments of alimony for the support of the minor children of the defendant, is not the substantial question at issue. It otherwise appears that there would be several thousand dollars over and above the amount of the execution and accrued costs from a sale of the real estate. While the demurrer urges that garnishment would be an adequate remedy as to funds on deposit with the loan associations, it is not contended that, after payment of the amounts due on the judgment for alimony, garnishment would be a proper remedy to retain the surplus in court to be paid out at such future times as the father might fail to make monthly payments.

"Garnishment proceedings are purely statutory and cannot be extended to cases not enumerated in the statute." Rager v. Maxon Shirt Co., 210 Ga. 408 (1) ( 80 S.E.2d 183). Whether garnishment proceedings are based upon a "pending" suit or upon a judgment, the essential element of garnishment is that some amount shall be claimed to be due. Code § 46-102 provides that the plaintiff, his agent or attorney, shall make affidavit, "stating the amount claimed to be due . . . and shall give bond, with good security, in a sum at least equal to double the amount sworn to be due, payable to the defendant in the suit or judgment, as the case may be, conditioned to pay said defendant all costs and damages that he may sustain in consequence of suing out said garnishment, in the event that the plaintiff shall fail to recover in the suit, or it shall appear that the amount sworn to be due on such judgment was not due." (Italics ours.) It thus appears that, however much the mother might have cause to believe that future monthly instalments would not be paid on maturity, she could not truthfully swear that any amount was yet due when she had just collected in full all amounts actually due. The statute does not authorize garnishment on the apprehension that some amount might become due in the future. Garnishment would not, therefore, be an adequate remedy to subject funds in the officer's possession when no amount was due on the judgment.

The statutory provisions (Code §§ 30-204 and 37-123) for enforcement "by attachment for contempt" are not an available remedy, since the father is a nonresident.

Code § 74-9902, as amended by Ga. L. 1941, pp. 481, 483, 1946, pp. 63, 64, and 1952, pp. 173, 174 (Code, Ann. Supp., § 74-9902), provides that, if a father shall wilfully and voluntarily abandon his child, leaving it in a dependent condition and shall leave the State, he shall be guilty of a felony; and that the child shall be considered to be in a dependent condition when the father does not furnish sufficient food and clothing for the needs of the child. If the facts of the present case would sustain an indictment, extradition, and trial of the father, this would not afford his children any relief, for the reason that a criminal prosecution, though instituted by a prosecutor, would be a proceeding between the State of Georgia on the one part and the accused on the other, to punish a violation of the criminal law, and it would not be a civil remedy to enforce any right of the minor children for support by their father. Mackenzie v. Minis, 132 Ga. 323, 333 ( 63 S.E. 900, 16 Ann. Cas. 723, 23 L.R.A. (NS) 1003).

"A person may steal his own property from an officer who has seized it under levy, and thereby be guilty of larceny." Ayers v. State, 3 Ga. App. 305 (5) ( 59 S.E. 924); Gladden v. State, 43 Ga. App. 236 ( 158 S.E. 338). The petition alleges that the father "surreptitiously removed, or caused to be removed," a trailer located in the county after he "had actual notice of the levy." Whether or not criminal proceedings might be instituted against the father under this phase of the criminal law, his children would obtain no relief, for the reasons above stated.

Equitable relief is available "to avoid a multiplicity of suits" (Code § 37-1501); or "where a multiplicity of suits would render a trial difficult, expensive, and unsatisfactory at law" (Code § 37-301); or where there is a common right to be established by one against many, or many against one (Code § 37-1007). Under the facts of the present case, the rights of all parties could be protected in one equitable action, whereas a number of suits at law might otherwise result, which would be both inadequate and expensive.

2. Generally, a court of equity has broad power in the appointment of receivers for property having no one to manage it, or for property charged with the payment of debts. Code §§ 55-301, 55-305; Orton v. Madden, 75 Ga. 83; Wolfe v. Claflin Co., 81 Ga. 64 ( 6 S.E. 599); Ramey v. McCoy, 183 Ga. 616 ( 189 S.E. 44); Peoples Loan Co. v. Allen, 199 Ga. 537, 564 ( 34 S.E.2d 811).

It has long been the rule that a court of equity may appoint a receiver before answer or pleading by the defendant, as was done in the present case. Jones v. Dougherty, 10 Ga. 273, 280; Williams v. Jenkins, 11 Ga. 595; Rogers v. Dougherty, 20 Ga. 271; Parrish v. Rigell, 183 Ga. 218, 221 ( 188 S.E. 15, 107 A.L.R. 1385). In Ainsworth v. Ainsworth, 37 Ga. 627, the trial court appointed a receiver in a divorce and alimony action by the wife. The Ainsworth case was decided prior to the enactment of Code § 30-213 (Ga. L. 1870, p. 413). The act of 1870 (now Code § 30-213) specifically provides for the appointment of a receiver, and any other remedy applicable in equity, in an alimony action.

Code §§ 30-118, 30-212, and 30-213 specifically authorize equitable intervention for the enforcement of any alimony judgment or decree, and these sections of the Code must be construed in pari materia in all alimony actions. Fulenwider v. Fulenwider, 188 Ga. 856, 866 ( 5 S.E.2d 20); Evans v. Evans, 191 Ga. 752 ( 14 S.E.2d 95); Moore v. Moore, 205 Ga. 355 ( 53 S.E.2d 343).

"In a proceeding for alimony under section 1747 [now 30-213] of the code, injunction and receiver and other necessary relief may be granted, and to this end all necessary parties may be joined as defendants with the husband." Price v. Price, 90 Ga. 244, 245 (2) ( 15 S.E. 774); Gray Brothers v. Gray, 65 Ga. 193; Lyon v. Lyon, 102 Ga. 453 ( 31 S.E. 34, 42 L.R.A. 194, 66 Am. St. R. 189); Wells v. Wells, 118 Ga. 812, 45 S.E. 669); Donalson v. Bridges, 162 Ga. 502 ( 134 S.E. 302); Jackson v. Jackson, 164 Ga. 115 ( 137 S.E. 827).

In Wood v. Wood, 166 Ga. 519 ( 143 S.E. 770), it was held that the wife could maintain a petition in equity to recover temporary and permanent alimony, to cancel a deed between her husband and his son, and to have a receiver appointed to take charge of the property so conveyed and to apply the rents to her claim for alimony; and it was said that the wife could maintain this proceeding notwithstanding the fact that no divorce proceeding, and no suit for temporary or permanent alimony, were pending at the time of the execution of the deed. See also Cochran v. Cochran, 173 Ga. 856 ( 162 S.E. 99); Boone v. Taylor, 185 Ga. 433 ( 195 S.E. 761); Fain v. Nix, 189 Ga. 772 ( 7 S.E.2d 733); McKoy v. Bush, 200 Ga. 759 ( 38 S.E.2d 669); Von Kamp v. Gary, 204 Ga. 875 ( 52 S.E.2d 591); 27 C. J. S. 1070, § 270; 45 Am. Jur. 40, § 43.

"A citizen of this State will not be required to pursue his rights against a non-resident debtor by suing in a foreign court when there is property of such debtor situated within this State, and subject to the jurisdiction of its courts, which supplies such an available res as to enable the courts of this State to administer justice." Pendley v. Tumlin, 181 Ga. 808 (1) ( 184 S.E. 283); Grimmett v. Barnwell, 184 Ga. 461 ( 192 S.E. 191, 116 A.L.R. 257).

In the present case counsel for the mother cites and strongly relies upon the case of Forrester v. Forrester, 155 Ga. 722 ( 118 S.E. 373, 29 A.L.R. 1363). In the Forrester case the wife filed a petition against the husband, who was a resident of the State of Alabama, for the appointment of a receiver for described personal property, there being no judgment for alimony and no proceeding for alimony pending. The husband, by counsel, made a special appearance to contest the jurisdiction of the court, and this court, in a divided opinion, held that the trial court was not without jurisdiction. The Forrester case has no application to the facts in the present case. The sole question made in the Forrester case pertained to the jurisdiction of the court, duly raised by a special appearance for such purpose. In the present case the defendant filed general demurrers, and the filing of a general demurrer to the merits amounts to a waiver of any defect in service, process, or jurisdiction. Code § 81-209; Adams v. Lamar, 8 Ga. 83, 95; Lyons v. Planters' Loan c. Bank, 86 Ga. 485 ( 12 S.E. 882, 12 L.R.A. 155); Paulk v. Tanner, 106 Ga. 219 ( 32 S.E. 99); Ray v. Hicks, 146 Ga. 685 ( 92 S.E. 48); Hadden v. Fuqua, 192 Ga. 668, 676 ( 16 S.E.2d 737); Black v. Milner Hotels, 194 Ga. 828, 831 ( 22 S.E.2d 780).

It was error to sustain a general demurrer on the grounds that there was an adequate relief at law and that equity was without jurisdiction in the cause.

Judgment reversed. All the Justices concur.

Summaries of

Kirchman v. Kirchman

Supreme Court of Georgia
Jul 10, 1956
93 S.E.2d 685 (Ga. 1956)

In Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956), the court stated that a criminal prosecution for abandonment was not a civil remedy to enforce a minor child's right to support.

Summary of this case from In re Rollins
Case details for

Kirchman v. Kirchman

Case Details


Court:Supreme Court of Georgia

Date published: Jul 10, 1956


93 S.E.2d 685 (Ga. 1956)
93 S.E.2d 685

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