Harden v. Harden

Per curiam.

The former wife appeals from a judgment entered in favor of the former husband in her contempt action for nonpayment of child support.

The agreement incorporated into the final judgment and decree of divorce provides in relevant part that "So long as financially able the Husband shall pay one-half (1/2) of the expenses incurred by the son of the parties, Lee Hall Harden, hereinafter referred to as the 'Child,’ so long as he is under twenty-two and one-half (22 1/2) years of age, unmarried and not fully self-supporting, to secure a four (4) year college or university degree or a trade or business school degree which shall include tuition, books, marticulation [sic] fees, room and board and any usual ordinary and necessary expenses.”

There is no provision in the agreement that any child support payments were to be paid to the wife at any time. Four other provisions in the agreement specifically stated that benefits were to go to the wife. It is uncontradicted that the "child” was 18 years of age at the time of the contempt hearing. Accordingly, the payments may be made directly to the adult child. McClain v. McClain, 235 Ga. 659, 663 (4) (221 SE2d 561) (1975).

The former husband is not required by law to make payments of this nature and only incurs these obligations when there is a lawful agreement incorporated into a divorce decree. McClain v. McClain, supra. Under these circumstances, the words "so long as financially able” have some meaning beyond what is involved in all contempt proceedings. Cf., Mason v. Mason, 232 Ga. 336, 337 (206 SE2d 479) (1974); Gillis v. Gillis, 243 Ga. 1 (1979). Furthermore, even if those words add nothing to the case that is not involved in all contempt proceedings for non-payment of child support, the judgment of the trial court still is supported by some evidence and must be upheld. After considering all the evidence, the trial court refused to hold the former husband in contempt of court. This court must áccept that determination unless we go further and determine that the trial court grossly abused its discretion. Hawkins v. Edge, 218 Ga. 463, 464 (128 *286SE2d 493) (1962). If there is any evidence to support the trial court’s determination, the judgment must be affirmed on appeal. Crowder v. Crowder, 236 Ga. 612 (225 SE2d 16) (1976).

Submitted December 8, 1978 Decided March 15, 1979. Redfern, Butler & Morgan, Rex M. Lamb, III, for appellant. W. Kenneth London, S. Alan Schlact, for appellee.

The former husband testified that at the end of each month after payment of certain expenses, he was left with $32.02, and that was without provision for clothing, auto insurance and maintenance, or health care. This evidence is sufficient to meet the "any” evidence test and affirm the trial court’s decision that the former husband is financially unable to do more.

Judgment affirmed.

All the Justices concur, except Hall and Hill, JJ., who concur in the judgment only, and Nichols, C. J., who dissents.