Corriher v. McElroy, Supreme Court of Georgia — July 14, 1953

Factual and Procedural Background

In January 1953 Mildred McElroy Corriher applied for a citation for contempt against her former husband Ridley Artz McElroy for failure to pay alimony. The parties had been divorced in September 1948, and an agreement incorporated into the judgment and decree required the father to pay $75 per month beginning October 1, 1948, for support, maintenance, and education of their minor child, Ridley Artz McElroy Jr., until the child reached age eighteen. At the hearing it was admitted that the defendant was in arrears in the amount of $1,083. All but $105 of that arrearage resulted from a subsequent agreement dated September 11, 1949, by which payments were reduced from $75 to $50 per month because of the father's inability to pay. The reduction agreement's invalidity as to civil liability was admitted. The father testified he intended to pay the arrearage as soon as he could but had no way to pay at that time. The trial court denied the citation and discharged the rule for contempt; the plaintiff excepted to that judgment.

Legal Issues Presented

Whether parents may, by subsequent agreement, nullify or modify a final divorce decree so as to deprive a child of alimony awarded by that decree.
Whether a wife seeking enforcement of an alimony judgment may require imprisonment for contempt when the defendant is unable to pay.
Whether the trial court abused its discretion in denying a citation for contempt and discharging the rule where the defendant admitted liability but claimed inability to pay and there was evidence of an agreement and indulgence by the plaintiff.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Varble v. Hughes, 205 Ga. 29, 32 (52 S.E.2d 303)	"The parents themselves cannot by subsequent agreement nullify or modify the final decree so as to deprive the children of the alimony granted by the verdict and decree."	Quoted to reaffirm that a post‑decree parental agreement cannot extinguish civil liability created by the decree (supporting the statement that the reduction agreement was invalid as to civil liability).
McCullough v. McCullough, 208 Ga. 776, 779 (69 S.E.2d 764)	"The wife in this case may avail herself today of any civil process to collect the full amount of her alimony judgment. She has no right to require that the defendant be imprisoned for contempt of court because of his failure to pay the full amount when he is unable to pay the same. We do not allow imprisonment for debt in this State."	Applied to limit enforcement remedies: civil process is available but imprisonment for inability to pay is not permitted; supports denial of contempt imprisonment where inability to pay is claimed.
Carlton v. Carlton, 44 Ga. 216, 220	Imprisonment for contempt is conditional, rests on the judge's discretion, and should not be used when inability, rather than unwillingness, is shown.	Used to emphasize that contempt imprisonment is conditional and should be discharged when inability to comply appears.
Burch v. Kenmore, 206 Ga. 277, 279 (56 S.E.2d 508)	Appellate courts will not interfere with the trial judge's discretion regarding contempt sanctions unless there is a manifest abuse of that discretion.	Invoked to justify deference to the trial court's exercise of discretion in discharging the rule for contempt absent manifest abuse.

Court's Reasoning and Analysis

The court began by reiterating established law that parents cannot by private agreement nullify or modify a final decree so as to deprive children of alimony awarded by that decree (Varble v. Hughes). It then noted the principled limitation on enforcement remedies: while the wife may pursue civil processes to collect the full alimony judgment, imprisonment for contempt when the defendant is unable to pay is not authorized (McCullough v. McCullough), because Georgia does not permit imprisonment for debt.

The opinion emphasized that imprisonment for contempt is conditional and rests in the judge's discretion, and that the judge should not use it except as a penal sanction for unwillingness to obey; when inability is shown, discharge is appropriate (Carlton v. Carlton). The appellate court further stated it will not disturb the trial court's discretionary decision unless there is a manifest abuse of that discretion (Burch v. Kenmore).

Applying these principles to the facts, the court concluded the trial judge was authorized to find the respondent's failure to pay was not due to unwillingness or wilful disobedience but, except for a small amount ($105), resulted from the parties' post‑decree agreement, with the plaintiff's consent and indulgence — an agreement that, insofar as the evidence shows, was not withdrawn or rescinded before the filing of the contempt application. The defendant admitted civil liability for the full decree amount and asserted his willingness to pay when financially able. On that basis the court found no manifest abuse in the trial court's discretionary discharge of the contempt rule.

Holding and Implications

Judgment affirmed.

Direct effect: The trial court's denial of the citation for contempt and discharge of the rule was affirmed, leaving the defendant subject to civil processes to collect the full alimony judgment but not subject to imprisonment for contempt on the record presented. The opinion upholds the trial judge's discretionary decision and does not disturb it.

Broader implications: The opinion applies existing Georgia precedent regarding the non‑effect of post‑decree parental agreements on civil liability for child support, the conditional and discretionary nature of contempt imprisonment, and appellate deference to trial court discretion. The opinion does not announce a new legal rule beyond these applications.

Disposition noted in opinion: "All the Justices concur, except Atkinson, P. J., not participating."

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CORRIHER v. McELROY.

HAWKINS, Justice.

An application for citation for contempt for failure to pay alimony was brought in January, 1953, by Mildred McElroy Corriher against her former husband Ridley Artz McElroy, from whom she was granted a divorce in September, 1948, at which time an agreement between the parties was made the judgment and decree of the court, which provided for the payment of $75 each month, beginning October 1, 1948, for the support, maintenance, and education of their minor child, Ridley Artz McElroy Jr., until he reaches the age of eighteen years. It was admitted on the hearing that the defendant was in arrears in the amount of $1083, and that all but $105 of this amount resulted from an agreement between the parties dated September 11, 1949, to reduce payments from $75 to $50 per month, due to inability of the father of the child to pay more. Invalidity of the reduction agreement insofar as civil liability was concerned was also admitted, the father testifying: "I love my boy and intend to support him and I will pay the total arrearage as soon as I can. I have no way of paying it at this time." To the judgment of the trial court denying the citation and discharging the rule for contempt, the plaintiff excepts. Held:

1. "The parents themselves cannot by subsequent agreement nullify or modify the final decree so as to deprive the children of the alimony granted by the verdict and decree." Varble v. Hughes, 205 Ga. 29, 32 ( 52 S.E.2d 303).

2. "The wife in this case may avail herself today of any civil process to collect the full amount of her alimony judgment. She has no right to require that the defendant be imprisoned for contempt of court because of his failure to pay the full amount when he is unable to pay the same. We do not allow imprisonment for debt in this State." McCullough v. McCullough, 208 Ga. 776, 779 ( 69 S.E.2d 764).

3. "It must be remembered also, that the imprisonment by a judge for contempt, is always conditional, and is at his discretion, and may, at any time, by the same discretion, be discharged. And very clearly, it ought never to be resorted to, except as a penal process, founded on the unwillingness of the party to obey. The moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party, since it is only the contempt, the disobedience upon which the power rests." Carlton v. Carlton, 44 Ga. 216, 220.

4. Since "Imprisonment for contempt is always conditional and is a matter solely within the sound discretion of the judge, and he may at any time, in the exercise of that discretion, discharge one so imprisoned" ( McCullough v. McCullough, 208 Ga. 776, 778, 69 S.E.2d 764), this court will not "interfere with the discretion vested in the trial judge unless it has been manifestly abused." Burch v. Kenmore, 206 Ga. 277, 279 ( 56 S.E.2d 508).

5. It cannot be held that there was a manifest abuse of discretion in this case, where the trial judge was authorized to find that the failure to pay was not because of unwillingness on the part of the respondent, or because of a wilful disobedience of the decree of the court, but, except for a small amount, was by virtue of an agreement with and the consent and indulgence of the present plaintiff, which, so far as the evidence shows, was never withdrawn or rescinded by her prior to the filing of the present suit, and upon the faith of which the respondent had failed to make payment in full. The defendant having admitted liability for the full amount specified in the decree, and expressed his willingness and intention to pay as soon as he was financially able to do so, it was not error to discharge the rule for contempt.

Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.

No. 18235. ARGUED JUNE 9, 1953 — DECIDED JULY 14, 1953.

CORRIHER v. McELROY