Hayes v

Hayes, 248 Ga. 526, 283 S.E.2d 875, 1981 Ga. LEXIS 1033 (1981). Procedure for Modification Exercise of right to petition for modification of child support. — Right to petition for modification of child support is a right which belongs to the child or children involved which may be exercised at the election of the mother or other person having legal custody of the children under the terms of the divorce decree. Crosby v. Crosby, 249 Ga. 569, 292 S.E.2d 814, 1982 Ga. LEXIS 875 (1982). Proceeding to modify alimony judgment is a new action, not a continuation of a divorce case. Slowik v. Knorr, 222 Ga. 669, 151 S.E.2d 726, 1966 Ga. LEXIS 594 (1966); Bugden v. Bugden, 224 Ga. 517, 162 S.E.2d 719, 1968 Ga. LEXIS 843 (1968). Proceeding to modify alimony judgment is subject to venue requirements. — Because a proceeding to modify an alimony judgment is a new action and not a continuation of a divorce case, it is subject to constitutional provisions respecting venue just as any other civil case. 554 Bugden v. Bugden, 224 Ga. 517, 162 S.E.2d 719, 1968 Ga. LEXIS 843 (1968). County in which modification actions must proceed. — Actions to modify alimony and divorce decrees must proceed in the county where the defendant currently resides. Buckholts v. Buckholts, 251 Ga. 58, 302 S.E.2d 676, 1983 Ga. LEXIS 709 (1983). Supreme court jurisdiction over divorce and alimony cases. — Proceeding for modification of alimony judgment is an alimony case within the meaning of Ga. Const. 1976, Art. VI, Sec. II, Para. IV (see now Ga. Const. 1983, Art. VI, Sec. VI, Para. II, III, V; Art. VI, Sec. I, Para. VIII; Art. VI, Sec. V, Para. V), giving the Supreme Court jurisdiction of divorce and alimony cases. Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534, 1958 Ga. LEXIS 303 (1958). Rules of procedure applicable to divorce proceedings apply to modification petition. — Law makes prayer for process necessary in petition for divorce. It follows that a petition to alter and revise a final decree fixing an amount of permanent alimony must pray for process and not be filed as a mere pleading or motion in original divorce suit. Davis v. Davis, 218 Ga. 250, 127 S.E.2d 296, 1962 Ga. LEXIS 473 (1962). County in which action filed. — Action to modify decree awarding alimony must be filed in county of defendant’s residence. Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686, 1969 Ga. App. LEXIS 1144 (1969); Hill v. Harper, 230 Ga. 246, 196 S.E.2d 397, 1973 Ga. LEXIS 876 (1973). Action to modify decree against nonresident served only by publication. — Court which renders alimony judgment does not have jurisdiction of action to modify judgment against nonresident of state who has been served only by publication, and who has not waived personal service. Slowik v. Knorr, 222 Ga. 669, 151 S.E.2d 726, 1966 Ga. LEXIS 594 (1966). Consents to and compliance with modification irrelevant if court lacked jurisdiction. — Fact that defendant consents to modification of original decree and acquiesces therein by making 19-6-18 payments thereunder for several months is irrelevant if the court was wholly without authority to modify the original judgment and decree and was without jurisdiction of the subject matter. Ethridge v. Echols, 212 Ga. 597, 94 S.E.2d 377, 1956 Ga. LEXIS 457 (1956). Petitions pursuant to this section are subject to § 19-5-8. — Petition under Ga. L. 1964, p. 713, § 1 (see now O.C.G.A. § 19-6-18) for modification of alimony judgment was governed by provision of former Code 1933, § 30-113 (see now O.C.G.A. § 19-5-8) that no verdict by default shall be taken in divorce cases. Johnston v. Still, 225 Ga. 222, 167 S.E.2d 646, 1969 Ga. LEXIS 440 (1969). No time lapse requirement for filing modification petition. — No particular time need elapse after judgment as prerequisite to petition for modification. Welch v. Welch, 213 Ga. 589, 100 S.E.2d 431, 1957 Ga. LEXIS 454 (1957). Child is not indispensable party to support modification agreement. — When husband and wife enter into contract for support of wife and a minor, and contract is made part of final decree of divorce, failure of former husband to make child a party to proceedings for modification does not subject his petition to dismissal because the minor child is not an indispensable party to an action to revise the decree. Dalon v. Dalon, 219 Ga. 185, 132 S.E.2d 195, 1963 Ga. LEXIS 396 (1963). Petition for modification must show facts relied upon to authorize relief desired, and must show that facts and circumstances relied upon have occurred since the date of alimony judgment, in case of first petition for revision, and since date of former application, in case of subsequent petition. Welch v. Welch, 213 Ga. 589, 100 S.E.2d 431, 1957 Ga. LEXIS 454 (1957). Language “satisfactorily proved” does not reduce burden of proof to less than preponderance of evidence. Instead, a party must “satisfactorily prove” his or her case by a preponderance of the evidence. Stiltz v. Stiltz, 236 Ga. 308, 223 S.E.2d 689, 1976 Ga. LEXIS 848 (1976). Appeal of decision supported by “some evidence.” — Trial judge’s decision on petition for modification not dis- 555 Procedure for Modification (Cont’d) turbed on appeal if supported by “some evidence.” Berkowitz v. Berkowitz, 239 Ga. 1, 236 S.E.2d 7, 1977 Ga. LEXIS 790 (1977). Modification of a child support obligation in a garnishment action, rather than a petition to modify, was erroneous. Twineham v. Daniel, 223 Ga. App. 25, 476 S.E.2d 814, 1996 Ga. App. LEXIS 1047 (1996). Waiver of Right to Modification Statutory modification right may be waived by appropriate contract language but courts will not find language waived absent very clear waiver language. Kitfield v. Kitfield, 237 Ga. 184, 227 S.E.2d 9, 1976 Ga. LEXIS 1193 (1976). Waiver of right to modification must be in clear, unambiguous language. — As to permanent alimony, a decree cannot be modified if there is an agreement between the parties, incorporated in a decree, which waives the right of modification. However, such waiver must be clearly intended and expressed by the person so waiving. Garcia v. Garcia, 232 Ga. 869, 209 S.E.2d 201, 1974 Ga. LEXIS 1117 (1974). Waiver of right to modification of judgment which incorporated contract between parties governing property and alimony rights between them has not occurred if language does not provide in clear and unambiguous language, needing no parol explanation, that the appellant waived the right to modify the alimony award. Kitfield v. Kitfield, 237 Ga. 184, 227 S.E.2d 9, 1976 Ga. LEXIS 1193 (1976). Phrase “full, complete and final settlement” does not operate as waiver. — Use of term “full, complete, and final settlement” in divorce agreement which was made part of final judgment, alone, does not have effect of constituting waiver of right to seek modification. McLoughlin v. McLoughlin, 234 Ga. 259, 214 S.E.2d 925, 1975 Ga. LEXIS 1104 (1975). Mother may waive right to revise alimony, but not child support. — Statutory right to petition for a revision of 19-6-18 alimony and child support payments insofar as it relates to alimony belongs to the wife and may be waived. But, insofar as it relates to child support, it is a right which belongs to the child or children involved which may be exercised at election of mother or other person having legal custody of children under terms of divorce decree. Since this right belongs to the children and not to the mother, she cannot waive the right. Livsey v. Livsey, 229 Ga. 368, 191 S.E.2d 859, 1972 Ga. LEXIS 616 (1972). Divorced wife cannot waive right of minor children to increased support in accordance with improved financial condition of former husband. Foreman v. Foreman, 234 Ga. 646, 217 S.E.2d 257, 1975 Ga. LEXIS 1215 (1975). Mother cannot waive child support award. — Right to child support belongs to child, not to mother, and after award has become part of court’s judgment she has no authority to waive the award. Johnson v. Johnson, 233 Ga. 664, 212 S.E.2d 835, 1975 Ga. LEXIS 1413 (1975). Right to petition for modification of child support belongs to the children and cannot be waived by the mother. Crosby v. Crosby, 249 Ga. 569, 292 S.E.2d 814, 1982 Ga. LEXIS 875 (1982). Mother cannot barter away child support in return for elimination of father’s privileges. Johnson v. Johnson, 233 Ga. 664, 212 S.E.2d 835, 1975 Ga. LEXIS 1413 (1975). Change in Income or Financial Status Alimony judgments rendered prior to 1977. — Party in alimony action in which final judgment was entered prior to enactment of Ga. L. 1977, p. 1253, § 1, has vested right in judgment not being subject to modification because of change in income of recipient since law in effect at time of judgment did not permit modification on such change. McClain v. McClain, 241 Ga. 422, 246 S.E.2d 187, 1978 Ga. LEXIS 1006 (1978). Change in financial status of husband since award is prerequisite to modification. Griffin v. Griffin, 226 Ga. 781, 177 S.E.2d 696, 1970 Ga. LEXIS 686 (1970). Husband’s pending inheritance. — Evidence of the husband’s pending inheri- 556 tance from the husband’s deceased parents could be considered for purposes of awarding alimony to a wife. Searcy v. Searcy, 280 Ga. 311, 627 S.E.2d 572, 2006 Ga. LEXIS 170 (2006). Statute allows revision in child support payments as financial condition of parties changes over time. Johnson v. Johnson, 233 Ga. 664, 212 S.E.2d 835, 1975 Ga. LEXIS 1413 (1975). To authorize modification requires substantial change in husband’s income or in his financial status so as to warrant an upward or downward revision of alimony or child support. Berkowitz v. Berkowitz, 239 Ga. 1, 236 S.E.2d 7, 1977 Ga. LEXIS 790 (1977). Legislature did not intend to require showing of change in both income “and” financial status, but rather a change in husband’s income “or” financial status. Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534, 1958 Ga. LEXIS 303 (1958). In order to carry out what the judiciary interprets to be intended by the legislature in Ga. L. 1964, p. 713, § 1 (see now O.C.G.A. § 19-6-18), the judiciary reads word “and” as “or,” and word “or” is substituted for “and” between words “income” and “financial status” in that statute. Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534, 1958 Ga. LEXIS 303 (1958). There is no provision for modification or revision of child support judgment except if there has been a substantial change in income “or” financial status of father subsequent to rendition of such judgment. Hooks v. Avret, 219 Ga. 743, 135 S.E.2d 899, 1964 Ga. LEXIS 397 (1964). Only issue on application for modification. — Upon trial of application for modification of alimony decree, the only issue is whether there has been such change in the income or financial status of husband as to warrant a modification and revision of the original decree, either upward or downward, as the case may be. McBrayer v. McBrayer, 227 Ga. 224, 179 S.E.2d 772, 1971 Ga. LEXIS 648 (1971). “Financial status” is much more comprehensive term than “income,” and pertains to conditions or circumstances in which a person stands with regard to that person’s income and property. McClinton v. McClinton, 217 Ga. 283, 19-6-18 122 S.E.2d 112, 1961 Ga. LEXIS 425 (1961). Determination of change in financial status. — In order to determine whether there has been a change in financial status between the two pertinent dates, a comparison must be made between the plaintiff’s financial status at the time of judgment and the plaintiff’s financial status at the time of the petition. McWilliams v. McWilliams, 216 Ga. 270, 116 S.E.2d 215, 1960 Ga. LEXIS 443 (1960). Substantial change in husband’s ability to pay is issue involved. — To authorize modification of alimony, the crux of the matter is whether or not there has been a substantial change in the husband’s ability to pay alimony required by the original decree. Schuster v. Schuster, 221 Ga. 614, 146 S.E.2d 636, 1966 Ga. LEXIS 644 (1966). Change in ability to pay. — The legislature intended that the original alimony judgment could be revised upon a change in the husband’s ability to pay, and there might be change in his ability to pay by reason of change in his financial status without any actual change in his income. Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534, 1958 Ga. LEXIS 303 (1958); McClinton v. McClinton, 217 Ga. 283, 122 S.E.2d 112, 1961 Ga. LEXIS 425 (1961); Parker v. Dyal, 237 Ga. 598, 229 S.E.2d 370, 1976 Ga. LEXIS 1315 (1976). Petition may allege change in financial status without alleging change in income. McWilliams v. McWilliams, 216 Ga. 270, 116 S.E.2d 215, 1960 Ga. LEXIS 443 (1960). There must be change in a party’s net worth. — In regard to the statute, the legislature meant that irrespective of change in income of husband, there should also be a change in his net worth, affecting his inability to pay the previously prescribed amount or affecting his ability to pay more than the previously prescribed amount. Parker v. Dyal, 237 Ga. 598, 229 S.E.2d 370, 1976 Ga. LEXIS 1315 (1976). Change may be shown by decreased financial obligations or other changed conditions even if there has been no increase in income. Livsey v. Livsey, 234 Ga. 557 Change in Income or Financial Status (Cont’d) 53, 214 S.E.2d 520, 1975 Ga. LEXIS 1010 (1975); Spivey v. Schneider, 234 Ga. 687, 217 S.E.2d 251, 1975 Ga. LEXIS 1222 (1975). Ten percent increase in hourly wages may warrant modification. — It cannot be held as a matter of law that 10 percent increase in former husband’s hourly wages is not a substantial change so as to authorize a change in support payments. Rolader v. Pendleton, 231 Ga. 16, 200 S.E.2d 108, 1973 Ga. LEXIS 574 (1973). Indebtedness incurred in acquisition of assets. — Man might become heavily indebted in order to acquire assets for himself, and such indebtedness would be no cause for reduction in alimony payments to support former wife and minor children. Welch v. Welch, 213 Ga. 589, 100 S.E.2d 431, 1957 Ga. LEXIS 454 (1957). Substantial decrease in husband’s income or financial status may warrant, but not demand, decrease of alimony. Potts v. Potts, 229 Ga. 827, 194 S.E.2d 471, 1972 Ga. LEXIS 792 (1972); White v. White, 233 Ga. 289, 210 S.E.2d 817, 1974 Ga. LEXIS 747 (1974); Trippe v. Trippe, 237 Ga. 159, 227 S.E.2d 46, 1976 Ga. LEXIS 1179 (1976). Adjustment based on changes in Consumer Price Index. — O.C.G.A. § 19-6-18 does not preclude adjustment based on changes in Consumer Price Index to award of fixed amount of alimony. Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875, 1981 Ga. LEXIS 1033 (1981). Increased expenses resulting from remarriage does not authorize termination of support. — Fact that the father, subsequent to a divorce decree, voluntarily assumed additional obligation of a second family by marriage did not authorize termination of obligation to the daughter by his former marriage, and especially since it was shown that the income of the father had substantially increased since the date of the alimony decree. Strickland v. Strickland, 220 Ga. 69, 137 S.E.2d 31, 1964 Ga. LEXIS 451 (1964). Amount of original award must be considered. — While under the provi- 19-6-18 sions of the statute, the trial court is not concerned with whether the wife or children are entitled to alimony or child support, when evidence of change in the husband’s income or financial status is disclosed, the court of necessity is concerned with the amount originally awarded, and such fact must be considered in determining if a modification is appropriate under the evidence. Rolader v. Pendleton, 231 Ga. 16, 200 S.E.2d 108, 1973 Ga. LEXIS 574 (1973). Subsection (b) excludes consideration of merits of alimony award. — Provision of subsection (b) of Ga. L. 1964, p. 713, § 1 to the effect that the only issue is the change in the former husband’s income or financial status is intended merely to exclude consideration of “merits of whether the wife, or child or children, or both, are entitled in alimony and support,” and not to exclude the issue of the former wife’s income or financial status, evidence relative to which was specifically made admissible by the legislature in subsection (a). Butterworth v. Butterworth, 227 Ga. 301, 180 S.E.2d 549, 1971 Ga. LEXIS 679 (1971). Evidence regarding increased earnings of wife alone does not authorize or require change in the amount of alimony which she is entitled to receive in absence of evidence as to change in the income or financial status of the husband. McBrayer v. McBrayer, 227 Ga. 224, 179 S.E.2d 772, 1971 Ga. LEXIS 648 (1971); Butterworth v. Butterworth, 227 Ga. 301, 180 S.E.2d 549, 1971 Ga. LEXIS 679 (1971). Relevancy of evidence of wife’s financial status. — Legislature intended that the prerequisite of revision of child support, either downward or upward, is proof of substantial change in the income or financial status of the former husband, and once this essential fact has been shown, evidence relative to the former wife’s income or financial status is relevant, hence admissible, for purpose of equitably determining how much the amount of child support should be modified. Butterworth v. Butterworth, 227 Ga. 301, 180 S.E.2d 549, 1971 Ga. LEXIS 679 (1971). Once evidence is introduced showing change in the former husband’s income or 558 financial status, it is proper to consider evidence of the former wife’s income or financial status. Rolader v. Pendleton, 231 Ga. 16, 200 S.E.2d 108, 1973 Ga. LEXIS 574 (1973). Unless there is evidence of substantial change in the husband’s ability to pay, evidence of the wife’s income and financial status becomes immaterial. Stiltz v. Stiltz, 236 Ga. 308, 223 S.E.2d 689, 1976 Ga. LEXIS 848 (1976). Wife’s indulgence in illicit relations is irrelevant. — Whether or not the evidence showed that the wife has indulged in illicit relations with a man to whom she was not married was not relevant to any issues as to whether alimony awarded by a previous decree should be continued. McBrayer v. McBrayer, 227 Ga. 224, 179 S.E.2d 772, 1971 Ga. LEXIS 648 (1971). Petition must plainly, fully, and distinctly allege facts relied upon. — Petition for modification of alimony judgment must show facts relied on to authorize relief desired, and it must be shown by facts alleged that a change has occurred in the financial status of the husband since the former adjudication. McWilliams v. McWilliams, 216 Ga. 270, 116 S.E.2d 215, 1960 Ga. LEXIS 443 (1960). Petition to modify and revise judgment must plainly, fully, and distinctly allege facts upon which the petitioner relies for such relief; otherwise, the petition is subject to general demurrer (now motion to dismiss). Perry v. Williamson, 219 Ga. 701, 135 S.E.2d 412, 1964 Ga. LEXIS 379 (1964). Amount awarded not inadequate. — Trial court’s final award of alimony in the amount of $1,000.00 a month, for a period of three years was upheld on appeal, despite the wife’s claims that such was inadequate given the court’s temporary award of $2,130.00 a month as the wife held a doctoral degree in education, failed to make tremendous efforts to become self-sufficient during the pendency of the suit, and should be self-supporting in a real estate business in three to four years. Hadden v. Hadden, 283 Ga. 424, 659 S.E.2d 353, 2008 Ga. LEXIS 293 (2008). 19-6-18 What Constitutes Permanent Alimony Judgment Statute is inapplicable to award from corpus of husband’s estate in lieu of periodic alimony payments. Daniel v. Daniel, 216 Ga. 567, 118 S.E.2d 369, 1961 Ga. LEXIS 280 (1961). Test for determining whether judgment is one for permanent alimony. — Test as to applicability of statute is not whether periodic payments will continue in the same amount, but whether payments will continue at periodic intervals as opposed to an award from the corpus of the husband’s estate. Foreman v. Foreman, 234 Ga. 646, 217 S.E.2d 257, 1975 Ga. LEXIS 1215 (1975). Escalation feature of agreement providing for possible increases is not award from husband’s estate. The escalation feature of an agreement merely provides for possible increase in periodic payments, which is no more an award from the corpus of the husband’s estate than the per month minimum award. Foreman v. Foreman, 234 Ga. 646, 217 S.E.2d 257, 1975 Ga. LEXIS 1215 (1975). Expenses of Litigation When wife initiates action, subsection (d) is inapplicable. — When the former wife and not the former husband seeks modification of an alimony award, attorney’s fees are not allowable. Griffin v. Griffin, 226 Ga. 781, 177 S.E.2d 696, 1970 Ga. LEXIS 686 (1970). Subsection (d) of statute does not permit award of attorney’s fees to the former wife when it is she and not her former husband who seeks modification of the alimony award. Spivey v. Schneider, 234 Ga. 687, 217 S.E.2d 251, 1975 Ga. LEXIS 1222 (1975). Subsection (d) is inapplicable to action to increase visitation rights. — Subsection (d) allows award to wife of attorney’s fees only when the husband has initiated action to modify a permanent alimony judgment, and not in an action seeking increased visitation rights. Gallant v. Gallant, 223 Ga. 397, 156 S.E.2d 61, 1967 Ga. LEXIS 541 (1967). Subsection (d) is inapplicable to action for change of custody. — Subsection (d) authorizes award of attorney’s fees 559 Expenses of Litigation (Cont’d) to the wife when the husband has filed an action to modify a permanent alimony judgment, but not in an action by the husband for a change of custody. Wilkins v. Wilkins, 234 Ga. 404, 216 S.E.2d 302, 1975 Ga. LEXIS 1147 (1975). Subsection (d) does not apply if child support payments are terminated contemporaneous with custody change. Hasty v. Duncan, 239 Ga. 797, 239 S.E.2d 7, 1977 Ga. LEXIS 1335 (1977). Motion to set aside modification not tantamount to filing action. — Filing of a motion by a husband to set aside judgment of the trial court modifying an original divorce decree is not tantamount to filing an action under this statute. Herring v. Herring, 233 Ga. 484, 211 S.E.2d 893, 1975 Ga. LEXIS 1353 (1975). Appeal from modification awarded is not equivalent to filing action. — Appeal by a husband from judgment for a 19-6-19 wife upon her successful application for alimony modification does not constitute an “application . . . filed by the husband” within the meaning of the statute. Spivey v. Schneider, 234 Ga. 687, 217 S.E.2d 251, 1975 Ga. LEXIS 1222 (1975). Court need not award wife’s costs of preparing record for appeal. — When the trial court has awarded attorney’s fees to the former wife it is not an abuse of discretion to refuse to grant the wife an additional amount for purposes of preparing a record for appeal. Parrott v. Parrott, 224 Ga. 801, 164 S.E.2d 811, 1968 Ga. LEXIS 957 (1968). Subsection (d) does not require payment of such expenses as condition precedent to maintaining of litigation by the defendant. Wayman v. Wayman, 222 Ga. 535, 150 S.E.2d 840, 1966 Ga. LEXIS 547 (1966).