The evidence adduced upon the hearing of the issue made by the citation for contempt did not demand a finding that the respondent was in contempt of court.
This is a companion appeal to the case of Vickers v. Vickers (26872) decided this date involving an appeal from adverse rulings of the Superior Court of DeKalb County in a pending divorce action between the parties. This appeal arises from the refusal of the Superior Court of Fulton County to hold Mr. Vickers in contempt of court for alleged violations of the provisions of the original divorce decree which was obtained in Fulton County. It is contended that the trial court erred in failing to find "1. He failed to pay could support as required by said order and, 2. He committed acts of physical harm and harassment toward appellant and he knowingly came upon the premises of her residence in violation of said order and, 3. He wilfully stole and secreted the minor children of the parties contrary to said order, and 4. He failed to transfer to appellant certain insurance policies in violation of said order."
1. As shown by the defenses filed by Mrs. Vickers in the divorce action pending in the Superior Court of DeKalb County, a dispute exists as to whether a common law marriage exists between these parties. The evidence adduced upon the contempt hearing showed without dispute that after the original divorce decree was rendered the parties have in fact cohabited, and that both parties had inflicted physical injuries upon the other during such renewed cohabitation. There was evidence adduced that Mr. Vickers had contributed more support than required by the original divorce decree, if such renewed cohabitation was not a common law marriage. If a common law marriage existed, then, under the decisions in McAlhany v. Allen, 195 Ga. 150 (3) (23 SE2d 676)
, and Warren v. Warren, 213 Ga. 81 (97 SE2d 349)
, his right to custody of the children was the same as if no divorce had originally been granted and the charge with reference to his conduct with regard to such custody would be without merit.
On the contrary, if no common law marriage existed, it must, under the circumstances, be concluded that such custody was with the consent of Mrs. Vickers.
The last remaining complaint deals with his failure to transfer ownership of certain life insurance policies. The evidence as to this issue showed a requirement of the divorce decree that such transfer be made. However, the evidence disclosed that there was an agreement entered into between the parties prior to such original decree being entered, that the decree did not follow the agreement and that Mr. Vickers had never seen the decree as rendered. While he was bound by such decree, the trial court was not required, under such circumstances, to find that his failure to transfer such policies was a wilful failure to comply with the original decree so as to require that he be held in contempt of court.
The judgment of the trial court refusing to hold the respondent in contempt of court shows no reversible error.