Poppell v. O'Quinn

Deen, Judge. This is a suit on a note executed pursuant to the final decree in a divorce action between these parties which stated: "The defendant is hereby ordered to pay alimony to the wife as follows: The defendant shall execute a promissory note in the amount of $1,000 — together with interest at eight per cent per annum due and payable two years from this date, namely, May 22, 1972.” Plaintiff moved for and was granted a motion for summary judgment, and the defendant appeals. Held: It is not a valid objection to the award of alimony that the husband has no "estate” out of which it can be paid. Lundy v. Lundy, 162 Ga. 42 (132 SE 389). The award may be "from the corpus of the estate or otherwise.” Code Ann. § 30-209. Nor is it an objection that the payment is [224] to be made at a future time; otherwise there would be no continuing liability for future sums. This note was executed pursuant to a court order as to which no appeal was taken; it cannot be attacked either for failure of consideration or on the ground that it was an antecedent liability until such judgment is set aside. Argued January 16, 1974 Decided March 8, 1974. Albert E. Butler, for appellant. John D. Mattox, R. L. O’Brien, Jr., for appellee. The grant of summary judgment to the appellee was proper. The request for damages for frivolous appeal is denied. Judgment affirmed. Eberhardt, P. J., Pannell, Quillian and Clark, JJ., concur. Bell, C. J., Hall, P. J., Evans and Stolz, JJ., concur in part and dissent in part.