Shepherdv.Shepherd

Supreme Court of GeorgiaMay 17, 1978
241 Ga. 484 (Ga. 1978)
241 Ga. 484246 S.E.2d 183

33530.

SUBMITTED APRIL 28, 1978.

DECIDED MAY 17, 1978. REHEARING DENIED JUNE 29, 1978.

Contempt, etc. DeKalb Superior Court. Before Judge Hendon.

Peek Whaley, Glenville Haldi, William H. Whaley, for appellant.

B. J. Smith, R. Bradley Egerton, for appellee.


This is the sixth reported appeal in this divorce case. Shepherd v. Shepherd, 239 Ga. 22 ( 235 S.E.2d 538) (1977); 236 Ga. 425 ( 223 S.E.2d 818) (1976); 234 Ga. 708 ( 217 S.E.2d 286) (1975); 233 Ga. 228 ( 210 S.E.2d 731) (1974); 232 Ga. 354 ( 206 S.E.2d 460) (1974); 231 Ga. 257 ( 200 S.E.2d 893) (1973). The issue presented here is whether a statement in the divorce decree that "defendant [wife] be awarded no alimony, she having waived hearing as to alimony in the second amendment," amounts to "silence as to alimony" so that a prior alimony award in a separate maintenance action remains in force. Shepherd v. Shepherd, 236 Ga. 425, supra; Tobin v. Tobin, 93 Ga. App. 568 ( 92 S.E.2d 304) (1956). The wife's second amendment clearly stated she was not seeking alimony in the divorce case. Therefore, the issue was not relitigated and the alimony award in the separate maintenance action remains in effect. The trial court erred in setting aside the prior orders and fi. fa.'s holding the husband in contempt for failure to make these payments. Woodall v. Woodall, 147 Ga. 676 ( 95 S.E. 233) (1917).

Judgment reversed. All the Justices concur.


SUBMITTED APRIL 28, 1978 — DECIDED MAY 17, 1978 — REHEARING DENIED JUNE 29, 1978.