1. The agreement between the parties, which was made the judgment of the court in the divorce decree, provided for the custody of the minor son of the parties by the appellee under the circumstances existing at the time of the contempt hearing, and the trial judge had no duty, or right, to determine any question pertaining to a change of custody.
2. The appellant had made no attempt to comply with the provision of the divorce decree with reference to the payment of "necessary and reasonable expenses for the support, maintenance and education" of his minor son, and the trial judge properly held him in contempt because of his wilful and intentional disobedience of the order of the court.
(a) Under the evidence the amount of $4,636 was not excessive for the expenses of the son during the period of time he had lived with the appellee.
(b) In a contempt proceeding the trial judge has no discretion to modify the terms of a decree for divorce and alimony.
3. The allowance of attorney's fees for the appellee was authorized by law, and the amount was not excessive.
4. The judgment is affirmed with direction that the judge strike from the order the provision attempting to modify the decree in the divorce action.
In the final decree entered on June 13, 1961, in a divorce action between Mrs. Kathleen Hughes Hunnicutt and Willard Towers Hunnicutt, an agreement of the parties was made the judgment of the court, and the parties were ordered to comply therewith. This agreement awarded the permanent custody of the minor children of the parties to the defendant "so long as the defendant does not remarry," with the further provision: "In the event that the defendant should remarry, the plaintiff shall have the custody, care and control of such of the said children as are then minors . . . In the event that the defendant remarries and the plaintiff has the permanent custody, care and control of any of the said minor children, then the defendant shall make reasonable provision for payment of necessary and reasonable expenses for the support, maintenance, and education of such of said children who are minors and in the custody, care and control of the plaintiff."
On November 17, 1966, Mrs. Kathleen Hughes Sandison, formerly Mrs. Kathleen Hughes Hunnicutt, filed a motion for contempt against Willard Towers Hunnicutt, reciting the agreement of the defendant not to sell the home until the minor children were all of age, and the provision in regard to payment of necessary and reasonable expenses for the support and maintenance of any child in her custody. She alleged that: The defendant has remarried, and she has had the custody of one of their minor children, Gregg Hughes Hunnicutt, since approximately March 10, 1966. The defendant has failed and refused to furnish any money for the support, maintenance, and education of this son, although demand has been made upon him on several occasions to do so. He is amply able to comply with the provision of the agreement with reference to the support, maintenance, and education of the minor child, and his failure to do so has been wilful and intentional. She prayed that the defendant be adjudged in contempt; that he be required to comply with the terms of the agreement, which was made the judgment of the court; that he be required to furnish to the plaintiff sufficient money to make reasonable provision for the expenses of the minor for his support, maintenance, and education; and for other relief.
The order of the court, entered after a hearing, made no reference to the sale of the home by the defendant. It was ordered: "1. That the defendant, Willard Towers Hunnicutt, is hereby adjudged in contempt of the order of this court which was dated the 7th day of June, 1961 as prayed, and the defendant may purge himself of this contempt by paying to the plaintiff the sum of $4,346, this sum to be paid at the rate of $50 per month, beginning with January 2, 1967, and a like sum on the 2nd day of each and every month thereafter until the defendant has paid to the plaintiff the said sum of $4,346 and by paying to the plaintiff for the support, maintenance and education of Gregg Hughes Hunnicutt, the minor child now in her custody, care and control, the sum of $250 per month, the first payment payable on January 2, 1967 and continuing monthly on the 2nd day of each and every month thereafter until the said Gregg Hughes Hunnicutt reaches the age of 21 years. 2. In default of the defendant making the payments as hereinabove provided, the Sheriff of Fulton County, Georgia is hereby directed to arrest the defendant and confine him in the common jail until he complies with the terms of this order. 3. The defendant shall pay to John L. Westmoreland, attorney for the plaintiff, for services rendered in presenting this rule or motion for contempt, the sum of $500 as attorney's fees, the said $500 payable on or before January 10, 1967, the said payments to be on account in the event that there are further proceedings in this matter . . ." The appeal is from this order.
1. In the first and second assignments of error the appellant contends that it was contrary to law and the weigh of the evidence to change the custody of the minor child, Gregg Hughes Hunnicutt, from the appellant to the appellee in the contempt proceeding. In assignments 4 and 5 it is claimed that the judge erred in changing the custody of the minor child, because the evidence showed no material change of circumstances affecting the welfare of the child, and because the appellee is not a fit and proper person to have custody of the child.
The order appealed from in the present case made no change in the custody of the minor child, Gregg Hughes Hunnicutt. The agreement of the parties, which was made the judgment of the court in the divorce case, provided that the appellant would have custody of the minor children of the parties so long as he did nor remarry, and that in the event he remarried, the appellee would leave custody of the children who were their minors. The appellant has remarried, and the minor child Gregg Hughes Hunnicutt (17 years of age) voluntarily moved to the home of the appellee, and he was in her custody at the time of the contempt hearing.
Counsel for the appellant cites a number of cases holding that a judgment granting permanent custody of minor children is conclusive on the facts then existing, and the trial court can not retain jurisdiction in order to alter or change the custody at some time in the future. See Burton v. Furcron, 207 Ga. 637 (63 SE2d 650)
; Goodloe v. Goodloe, 211 Ga. 894 (89 SE2d 654)
. This principle of law is not applicable in the present case. The agreement of the parties, which was made the judgment of the court in the divorce case, did not attempt to provide for a future determination of the rights of the parties on the happening of a future event, but made definite provision for custody in the appellant until his remarriage, and, in the event of his remarriage, it placed the custody of the children, then minors, in the appellee. Compare Brooks v. Thomas, 193 Ga. 696 (19 SE2d 497)
The only question before the trial judge in the present case was the determination of whether the appellant should be held in contempt for failure to make alimony payments, and the judge made no determination, and he was not authorized to make any, as to whether there had been any material change in circumstances affecting the minor child since the divorce decree, or as to the fitness of the parent having custody of the minor.
2. In the third assignment of error it is asserted that the judge erred in finding the appellant in contempt for failure to pay support and maintenance for the minor child. In the sixth assignment it is contended that it was error to decree the sum of $250 per month for future support and maintenance. In the seventh assignment it is claimed that it was error to find that the appellant was in contempt for failing to provide $4,346 as support and maintenance, for the reason that this sum is excessive, unreasonable, and against the weight of the evidence. The appellant admitted that he had made no attempt to reimburse the appellee for expenses of his minor son since the son moved to the home of the appellee. It was his contention that the permanent custody of the minor had not been transferred to the appellee, and that he was not obligated to provide for his son's maintenance under these circumstances.
In Booker v. Booker, 219 Ga. 358 (133 SE2d 353)
, this court had under consideration an order holding a father in contempt for failure to pay "living and maintenance expenses" for his minor child. In the Booker case this court pointed out that the decree, which was based on an agreement of the parties, "did not specify any definite amount to be paid at fixed intervals, but left the amount in the same indefinite state as if the parties had not been divorced." While the Booker case was remanded for a further hearing as to the amount of alimony in arrears, it was not held in that case that the indefiniteness of the alimony provision would prevent the court from holding the father in contempt for failure to pay the expenses for which he was obligated under the divorce decree.
Since the applicant in the present case had made no attempt to comply with the provision of the divorce decree with reference to the payment of "necessary and reasonable excuses for the support, maintenance and education" his minor son, it was proper to hold him in contempt of the order in the divorce decree.
The appellee testified that in the period of approximately ten months that the minor child had been living with her she had spent $4,346 for maintenance, car costs, school allowance, medical and dental expenses; and the judge held the appellant in contempt for failure to pay this amount. She testified that this amount included the cost of a small automobile which she bought in order that her son might go back and forth from her home to the school he was attending at the time he came to her home. She stated that this arrangement was for the ten weeks until he finished at that school, and that the automobile was sold when the son entered Riverside Academy.
What may be considered "necessary and reasonable expenses for the support, maintenance and education" of the minor child presents a difficult question for this court, as it did, no doubt, for the trial judge. Under the testimony of the appellee, the judge was authorized to find that the amount of $4,346 was not excessive under the agreement of the appellant to pay "necessary and reasonable expenses for the support, maintenance and education" of his minor son, and the judge did not err in holding the appellant in contempt for failure to pay this amount.
In Booker v. Booker, 219 Ga. 358 (133 SE2d 353)
, this court had under consideration an order holding a father in contempt for failure to pay "living and maintenance expenses" for his minor child. In the Booker case this court pointed out that the decree, which was based on an agreement of the parties, "did not specify any definite amount to be paid at fixed intervals, but left the amount in the same indefinite state as if the parties had not been divorced."
In the present case the judge was without authority in the contempt proceeding to fix the sum of $250 per month for the future support and maintenance of the minor son of the appellant.
3. The final assignment of error is that the judge erred in allowing attorney's fees in the amount of $500, because the allowance is contrary to law, excessive, and contrary to the weight of the evidence. The appellee is entitled to reasonable attorney's fees in the prosecution of the action for contempt. Ga. L. 1947, p. 292 (Code Ann. 30-219). The amount of $500 does not appear to be excessive in this case, and it was not error to allow this amount of attorney's fees to the appellee.
4. The order of the trial judge in the contempt proceeding is affirmed, except that portion which attempted to modify the decree in the divorce action. No further hearing is necessary in the matter, and we therefore affirm the judgment, with direction that the judge strike from the order the provision for the payment of $250 per month until the minor child reaches the age of 21 years.