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Lawskills.com Georgia Caselaw
DAUGHTRY v. DAUGHTRY.
21835.
Alimony; contempt. Screven Superior Court. Before Judge Usher.
QUILLIAN, Justice.
1. Where, as in this case, a petition sets forth cause for some of the relief prayed it will not be dismissed upon a motion in the nature of a general demurrer.
2. Where a divorce decree does not determine the custody of a child, the issue may be passed upon in an appropriate proceeding instituted for that purpose.
Ward E. Daughtry and Ella D. Daughtry, formerly husband and wife, obtained a divorce in Screven Superior Court. The decree dissolving the marital relation of the parties awarded $30 per month as alimony to Mrs. Daughtry. It was provided in the decree: "It is further ordered that the defendant pay all medical and hospital bills connected with the birth of the child with which the plaintiff is now pregnant. The matter of support for said child after its birth is not now decided, but left in the breast of the court." Some months elapsed, the child was born, and Ward Daughtry became $480 in arrears in the payment of the alimony awarded.
Ella Daughtry instituted the present proceedings in Screven Superior Court. Her petition set forth the above stated facts and alleged that Ward E. Daughtry, the respondent, was in arrears in the payment of the alimony awarded to her. The petition prayed that he be cited for contempt on account of his failure to pay the alimony to her as directed by the divorce decree and that he be required to pay additional sums for the support of the child. The judge issued an order requiring the respondent to show cause why he should not be held in contempt and why he should not pay to Mrs. Daughtry money for support of the child.
Ward Daughtry made a motion to dismiss the petition on three grounds, two of which have been expressly abandoned in his brief to this court. The third reads: "That said contempt rule as it applies to said child named in said divorce decree is void for the following reason, that said court could not retain jurisdiction of an unborn child and for that reason said child could not be held in the breast of the court. Now [sic] could said court hold jurisdiction in the breast of the court of a child by a decree after final judgment of the court. Therefore for that reason as assigned said contempt rule should be dismissed. The same being the law as made and provided for such cases." The trial judge overruled the motion and entered a judgment holding the respondent in contempt because of his failure to pay Ella Daughtry alimony as provided by the previous decree and further ordering him to pay to her $7.50 per week for the support of the child.
Ward Daughtry excepted to the order overruling his motion and to the final judgment rendered in the case. The overruling of the motion was the only ruling antecedent to the final judgment assigned as error. The exception to the same reads: "To this ruling overruling the motion to dismiss, [the plaintiff in error] excepted and now excepts and assigns the same as error as to each and every ground and says that said ruling was contrary to law and that said motion should have been sustained and said contempt proceedings dismissed." The exception to the final judgment is general, merely being that the judgment is excepted to and assigning no reason why it is alleged to be error.
Under the facts related the only question for decision is whether the trial judge erred in overruling the motion to dismiss the petition.
The judgment overruling the motion was correct for two reasons: first, it was addressed to the whole petition and it appears from the record that the petition set forth a good contempt action against the defendant. "A general demurrer to a petition will not be sustained if the facts entitle the plaintiff to any of the substantial relief prayed." Luke v. Crumley, 214 Ga. 638, 641 (106 SE2d 776); Wallace v. Wallace, 213 Ga. 96 (2) (97 SE2d 155). Secondly, while the defendant, plaintiff in error here, argues the insufficiency of the petition to set forth a cause against him for alimony or support for the child born since the decree dissolving the marital relations between him and Ella Daughtry, referred to by the parties as the plaintiff, the motion does not challenge or even mention the authority of the trial judge to compel the defendant to pay the plaintiff alimony or "child support" under Code Ann. 30-301 (Ga. L. 1958, pp. 204, 205), nor does it raise the issue as to whether the plaintiff is entitled to support for the child.
While the motion does not clearly attack the petition on any ground, it suggests lack of jurisdiction in the trial judge in respect to the custody of the child, and no other matter or issue therein is mentioned. The original decree of the court did not, according to the record, determine the custody of the child. Hence, the trial judge was clothed with authority to pass upon the issue, but did not include in the judgment he entered any reference to custody. The judgment excepted to must be
Affirmed. All the Justices concur.
Limerick L. Odom, for plaintiff in error.
SUBMITTED NOVEMBER 13, 1962 -- DECIDED JANUARY 14, 1963.
Friday May 22 22:12 EDT


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