Waller v. Waller

237 Ga. 336 (1976)

227 S.E.2d 374

WALLER v. WALLER, and vice versa.

31237, 31265.

Supreme Court of Georgia.

Submitted June 7, 1976.

Decided July 9, 1976.

Rehearing Denied July 23, 1976.

Scott Walters, Jr., for appellant.

Harris & Martin, James F. Martin, for appellee.

HALL, Justice.

This case makes its third appearance before this court. Waller v. Waller, 226 Ga. 279 (174 SE2d 433) (1970) and Waller v. Waller, 232 Ga. 380 (207 SE2d 20) (1974). It involves an appeal (No. 31237) and cross appeal (No. 31265) from a judgment of the Fulton Superior Court on a contempt petition brought by Dorothy Cowan Waller (appellee and cross appellant) against her former husband, Joseph Blanton Waller (appellant and cross appellee), for his failure to pay child support to her in accordance with a final divorce decree. The judgment appealed from by both parties adjudged appellant not to be in wilful contempt, but to be in arrears in the amount of $1,517 on his child support payments. Additionally, the court awarded attorney fees in the amount of $250 to the appellee, and directed appellant to resume child support payments in the full amount required by the divorce decree.

1. The trial court did not err in holding that where the award of child support is to the children as a group, the transfer of custody of one of the children does not of itself bring about a pro rata reduction in the amount of that support. Edwards v. Edwards, 235 Ga. 199 (219 SE2d 117) (1975). See also Thomas v. Thomas, 236 Ga. 311 (223 SE2d 691) (1976).

2. The trial court erred in awarding the appellee attorney fees after finding the appellant not guilty of contempt. See Code § 30-219.

3. The other enumerations are without merit.

1. While there was arrearage owed by the father, we hold that the trial court did not abuse its broad discretion in reaching the conclusion that the father had not wilfully disobeyed its order. Crowder v. Crowder, 236 Ga. 612 (225 SE2d 16) (1976).

2. The trial court erred in reducing the amount of arrearage due under the original decree. Arnold v. Arnold, 236 Ga. 594 (225 SE2d 30) (1976); Edwards v. Edwards, supra; Anderson v. Anderson, 230 Ga. 885 (199 SE2d 800) (1973).

Judgment affirmed in part and reversed in part. All the Justices concur.