BEFORE ROY NOBLE LEE, DAN LEE and PRATHER
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Janis Susan Miller (formerly Mason) filed suit in the Chancery Court of Rankin County against Dr. William Raymond Fannin, Jr., seeking the sum of twenty-four thousand four hundred dollars ($24,400) claimed to be due under an alleged property settlement, together with compensatory and punitive damages. She also sought to have Dr. Fannin adjudged in contempt of court for failure to pay said amount. Dr. Fannin filed an answer with affirmative defenses and a counterclaim asking for damages against Mrs. Miller and for overpayment of funds under such settlement. The lower court entered a decree finding that Mrs. Miller was not entitled to recover and, consequently, Dr. Fannin was not in contempt of the court. Mrs. Miller appeals and assigns two errors in the judgment of the lower court:
(1) The payments provided for in the separation
agreement constitute a property settlement and were unaffected by the appellant's remarriage.
(2) The right of parties to contract for payment of alimony is a constitutionally protected right and may not be abridged by statute or other state action.
The parties were married in Hinds County, Mississippi, September 24, 1974, and subsequently moved to Dekalb County, Georgia, where they were residing at the time of their separation in November, 1981. No children were born of the marriage. On October 17, 1981, they entered into a separation agreement, resolving issues of alimony and property, and a final decree of divorce was entered by the Georgia Court February 8, 1982. After the divorce, appellant moved to the state of Florida and remarried on May 8, 1982. Upon learning of appellant's remarriage, appellee discontinued payment of amounts provided in the separation agreement, which action on his part resulted in this lawsuit.
Appellee takes the position that the payments under the instrument entitled "Property Settlement" constituted alimony payments and, upon the remarriage of appellant, they were terminated under Georgia law. Appellant contends that the payments provided in the instrument were not alimony payments and amounted to a property settlement, which was not terminated by her new marriage.
Those parts of the separation agreement which are concerned in this suit follow:
2. Property Settlement of Parties
(d) Husband shall pay to wife as alimony for the purpose of resettlement, the sum of $1,000 per month for a period of 22 months. Said payments are to commence on the 5th and 25th day of each month thereafter until paid. Husband shall further pay wife the sum of $600.00 per month for 24 months following the first period set forth above, said payments also to be on the 5th and 25th of the month.
This agreement is made pursuant to ...