Manuel v. Manuel

237 Ga. 828 (1976)

229 S.E.2d 644

MANUEL v. MANUEL.

31592.

Supreme Court of Georgia.

Argued October 13, 1976.

Decided October 26, 1976.

Gilbert & Blum, Fred A. Gilbert, for appellant.

Huie, Ware, Sterne, Brown & Ide, W. Stell Huie, C. Edward Dobbs, Michael D. Kelly, amicus curiae.

Harris & Martin, Robert B. Harris, R. Britt Harris, Jr., for appellee.

HILL, Justice.

Prior to their divorce, appellant-wife and appellee-husband entered into a separation agreement providing for property settlement, alimony and child support. The agreement was made the judgment of the divorce court. Thereafter, on April 1, 1976, the former husband was adjudged bankrupt. The bankruptcy judge temporarily restrained and enjoined all actions against the bankrupt and his property. On April 5, 1976, the wife instituted a contempt application in Fulton Superior Court for nonpayment. On June 25, 1976, the husband filed in the superior court a notice of stay in bankruptcy alleging that he had scheduled as a debt, dischargeable in bankruptcy, certain payments required by the separation agreement.

The superior court found as a matter of law that certain payments provided by the separation agreement were discharged by bankruptcy. The court found the husband, however, in contempt as to certain alimony and child support payments called for by the agreement. The wife appeals, enumerating as error the trial court's finding as a matter of law that certain obligations were discharged by the husband's bankruptcy and are not to be included in the application for contempt.

There is no evidence to support the finding that the husband's obligations in question were discharged by his bankruptcy. The trial court was simply notified that certain provisions of the separation agreement had been scheduled by the husband in the bankruptcy action. The trial court should have stayed the contempt proceeding as to those provisions scheduled for determination in bankruptcy. 1A Collier on Bankruptcy (14th Ed.), § 11.04. It erred in adjudging that those obligations were *829 discharged by bankruptcy.

Judgment reversed. All the Justices concur.