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Lawskills.com Georgia Caselaw
CANDLER v. WILKERSON.
24186.
Alimony. Fulton Superior Court. Before Judge Wood, Emeritus.
DUCKWORTH, Chief Justice.
Georgia Laws 1966, p. 160, amending Code 30-209, so as to provide for the termination of permanent alimony whether created by contract or otherwise upon the remarriage of the wife unless otherwise provided for in the decree, is, insofar as the trust indenture here providing for varied payment to the wife until 1972, violative of the State and Federal Constitutions as a law impairing the obligation of a valid contract and is null and void.
This case is one brought to terminate or modify certain alimony payments due to the severe reduction of the financial status of the husband and by reason of the remarriage of the wife and the change in Code 30-209 by reason of the amendment thereto by Ga. L. 1966, p. 160, wherein all obligations for permanent alimony shall cease upon the remarriage of the wife whether created by contract or otherwise unless otherwise provided in the decree. The petition was in two counts but the petitioner abandoned all but the legal question of whether the 1966 amendment voided the trust indenture of the parties whereby the wife would receive varied sums from time to time from a trust until August 1, 1972, at which time the trust terminates.
By agreement of the parties the case was submitted to the court to pass on the issues of law and fact contained in the original record and pleadings of the divorce and alimony case. The court in its findings of fact stated that the parties had entered into the valid trust agreement and concluded that insofar as the 1966 amendment to Code 30-209 applied to the petitioner's obligations to pay alimony under the trust agreement it would impair the obligations of a valid and existing contract and was null and void in violation of the State and Federal Constitutions. Thereupon the court denied the petitioner's prayers for relief, and the appeal is from this final judgment.
Before the approval of the amendment to Code 30-209 (Ga. L. 1966, p. 160) whereby all obligations for permanent alimony for the wife would cease upon her remarriage whether created by contract or otherwise unless otherwise provided in the decree, the alimony awarded in this case would not terminate upon the death or remarriage of either party since it is for an amount certain to be paid over a period of time. The award of alimony was the result of a contract by and between tho parties and attached to and made a part of the final decree which was a trust indenture whereby permanent alimony would be paid over a period of time in varied amounts until August 1, 1972, at which time the trust would terminate. To the extent that the provisions of the above law might provide for termination of alimony payments made as provided in the trust agreement it can not be applied to vested rights fixed by judgments such as this one which was rendered before the Act was passed. To do so would cause the Act to offend the constitutional inhibition against retroactive laws. In addition it would destroy the wife's interest in the trust and nullify the contract entered into by the parties in settlement of alimony. The lower court held that the agreement constituted an equitable assignment and vested in the wife an equitable interest in the trust, hence the Act (Ga. L. 1966, p. 160) amending Code 30-209 so as to provide for the duration of alimony is, insofar as it undertook to affect the obligations of a valid contract in existence at the time of its passage, and particularly to this trust agreement, null and void as violative of the State Constitution (Art. I, Sec. III, Par. II; Code Ann. 2-302) and the Federal Constitution (Art. I, Sec. X, Par. I; Code 1-134). With this we agree. It follows that the court did not err in dismissing the suit seeking to terminate the payments because of the remarriage of the wife.
Judgment affirmed. All the Justices concur.
Grant, Spears & Duckworth, William G. Grant, for appellee.
Roland Neeson, Elijah A. Brown, for appellant.
ARGUED JULY 10, 1967 -- DECIDED JULY 14, 1967.
Friday May 22 19:11 EDT


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