Opinion
31845.
ARGUED JANUARY 24, 1977.
DECIDED FEBRUARY 8, 1977.
Modification of alimony, etc. Fulton Superior Court. Before Judge Wofford.
Robert G. Wellon, for appellant.
Joe Salem, Matthew Blender, for appellee.
Appellant filed a "Complaint for Modification or to Set Aside Final Judgment and Decree," alleging (1) that her ex-husband's financial condition had improved substantially since the final judgment in their divorce case; (2) that the final judgment in the divorce case contained two conflicting figures as to child support and was therefore unenforceable; and (3) that her husband induced her to enter into the agreement by fraudulently misrepresenting to her the amount of his indebtedness.
The case was called for jury trial on October 12, 1976 at which time the appellee filed a motion for "Summary Judgment on the Pleadings," stating that appellant's case was based solely on her allegation that the appellee had left the United States Air Force to join the Atlanta Police Department, whereas in her original complaint for divorce, appellant had alleged that her husband was at that time employed by the Atlanta Police Department. The trial court granted the motion and entered an order dismissing the complaint.
The record does not support the dismissal. Genuine issues of material fact remain for adjudication both as to plaintiff's allegation that her husband's financial condition has undergone substantial improvement and as to her allegation that the separation agreement was procured by fraud. It was accordingly error to enter summary judgment or judgment on the pleadings in favor of the appellee.
Judgment reversed. All the Justices concur.