1. In the contempt proceeding based on failure to pay permanent alimony as provided in a decree based on a consent verdict, there was no exception to the ruling of the judge that on the admissions of the defendant's attorney in open court the burden of proof as to the defense pleaded was on the defendant.
2. The pleadings and evidence and assignment of error did not raise a contention, mentioned for the first time in the brief for the plaintiff in error, that respondent had all of October, 1940, in which to pay alimony for that month, and consequently he could not be in contempt before the end of the month.
3. On the assumption of the burden of proof and conflicting testimony, and the circumstances of the parties, the judge was authorized to find against the alleged defense in the contempt proceeding as to cohabitation by the plaintiff with the man in question, and in favor of the plaintiff on the question of intentional disobedience of the decree for permanent alimony. Accordingly there was no error in adjudging the respondent in contempt of court.
(a) The controlling question in the case is one of fact, which is disposed of adversely to the plaintiff in error by the foregoing ruling.
(b) The rulings above announced are not opposed to the Code, § 30-217, providing that "voluntary cohabitation of the husband and wife shall annul and set aside all provision made, either by deed or decree, for *Page 105 permanent alimony," or the decisions in Blair v. Blair, 166 Ga. 211 (142 S.E. 743), holding, under a different state of facts, that the judgment was unauthorized by the evidence, and Henderson v. Henderson, 170 Ga. 457 (153 S.E. 182), holding in a subsequent proceeding that the judge has not a discretion to revise a verdict and decree granting permanent alimony, to which no exception was taken.
Judgment affirmed. All the Justicesconcur.
No. 13598. MAY 14, 1941. Under the Code, §§ 30-210(3), 30-213, a wife instituted proceedings for alimony on the ground of wilful desertion by the husband, alleging that they were living in a bona fide state of separation. On December 2, 1937, the jury returned a consent verdict for the plaintiff against the defendant, for "the sum of $30 per month as long as she remains single." On the same day a decree was rendered on the verdict, which employed the words above quoted. On October 14, 1940, the plaintiff instituted proceedings against the defendant, for contempt of court, alleging failure of defendant, on October 1, 1940, to pay the $30 then owing under said decree, and that defendant "stated that he was not going to pay plaintiff any further sums whatsoever, and that he does not intend to further obey said decree." In his answer to the petition for contempt, filed on November 4, 1940, the defendant alleged that he had paid all alimony as provided by the decree, from December, 1937, until October, 1940, "when and at which time he learned that the plaintiff was living with [a named man as husband and wife], and after securing this information he ceased to pay the alimony, because she was not entitled to collect alimony from him." It was also alleged that the plaintiff and the man had been so living together from about February, 1940, to September, 1940, and "that plaintiff is either married to . . or living in a state of adultery with him, and has forfeited all right to collect alimony from this defendant." No other defense was pleaded. At the hearing before the judge on November 4, 1940, the defendant admitted that the judgment had been rendered against him as indicated above, and that he had not paid any alimony since October 1, 1940, for reasons stated in his answer to the rule for contempt. The court ruled that the burden of proof was on defendant; and he proceeded to introduce testimony of several witnesses as to conduct *Page 106 of the parties, and of circumstances, that tended strongly to sustain the charge of cohabitation between plaintiff and the man. In rebuttal the plaintiff and the man both gave testimony denying the charge of cohabitation, and to the effect that there were no illicit relations between them. A young son of plaintiff testified that for a part of the time in question he lived and slept with his mother, and so far as he knew there were no improper relations between plaintiff and the man. The defendant was adjudged in contempt. The defendant excepted. Error was assigned on the grounds, that the judgment was contrary to law and to the evidence, decidedly and strongly against the weight of the evidence, and without evidence to support it; and because the evidence clearly showed that the plaintiff was living in a state of adultery and had forfeited her right to collect alimony.