The exception is only where "... (1) there was no jury trial as to permanent alimony, and the question of permanent alimony was disposed of by agreement of the parties incorporated in the decree and made the judgment of the court; and (2) the power to change or modify the decree was reserved to the court by consent of the parties. Hardy v. Pennington, 187 Ga. 523 ( 1 S.E.2d 667); Banda v. Banda, 192 Ga. 5 ( 14 S.E.2d 479); Breen v. Breen, 208 Ga. 767 (1) ( 69 S.E.2d 572)." Fricks v. Fricks, 215 Ga. 137 (1) ( 109 S.E.2d 596).
Chandler v. Chandler, 204 Ga. 40, 48 S.E.2d 841 (1948); Estes v. Estes, 192 Ga. 100, 14 S.E.2d 680 (1941), see also Estes v. Estes, 192 Ga. 94, 14 S.E.2d 681; and Nipper v. Nipper, 133 Ga. 216, 65 S.E. 405 (1909). As the Supreme Court of Georgia stated in Banda v. Banda, 192 Ga. 5, 14 S.E.2d 479 (1941): While "the order allowing [temporary] alimony shall be subject to revision by the [trial] court at any time" (Code, § 30-204; Coffee v. Coffee, 101 Ga. 787 (28 S.E. 977); Wester v. Martin, 115 Ga. 776, 42 S.E. 81), the rule is different as to decrees for permanent alimony.
However, until and unless such proceedings are instituted conformant with the provisions of Code Ann. § 30-220, supra, the original permanent-alimony decree is res judicata as to the amount the father must pay for the support of the children. On the hearing of a contempt case filed by the children's mother on the grounds that the father has failed to pay the alimony for their support as required by a previous divorce and alimony decree, if such former decree did not reserve such authority in the judge, the rule is as stated in Banda v. Banda, 192 Ga. 5, 6 ( 14 S.E.2d 479): "After a decree for permanent alimony has become absolute, there is no authority given under the law by which a trial court is empowered to abrogate or modify the obligation imposed by the decree, unless such a right has been reserved by consent of the parties in the final decree itself." Hardy v. Pennington, 187 Ga. 523, 525 ( 1 S.E.2d 667); Breen v. Breen, 208 Ga. 767 ( 69 S.E.2d 572). For the evolution of this doctrine, see similar holdings in: Wilkins v. Wilkins, 146 Ga. 382 ( 91 S.E. 415); Gilbert v. Gilbert, 151 Ga. 520 ( 107 S.E. 490); Deaderick v. Deaderick, 182 Ga. 96, 97 ( 185 S.E. 89); and Fricks v. Fricks, 215 Ga. 137 ( 109 S.E.2d 596).
Fricks v. Fricks, 215 Ga. 137, 138 ( 109 S.E.2d 596). See also Hardy v. Pennington, 187 Ga. 523 ( 1 S.E.2d 667); Banda v. Banda, 192 Ga. 5, 6 (1) ( 14 S.E.2d 479); Breen v. Breen, 208 Ga. 767 (1) ( 69 S.E.2d 572). Since it does not appear that the trial court retained jurisdiction under the conditions set forth above, the court was without jurisdiction to modify the award of alimony made December 5, 1953. "A judgment rendered by a court without jurisdiction is a mere nullity, and may be so held wherever and whenever and in whatever way it is sought to be used as a valid judgment." Towns v. Springer, 9 Ga. 130 (1).
Gilbert v. Gilbert, 151 Ga. 520 ( 107 S.E. 490). An exception to the general rule is allowed, provided (1) there was no jury trial as to permanent alimony, and the question of permanent alimony was disposed of by agreement of the parties incorporated in the decree and made the judgment of the court; and (2) the power to change or modify the decree was reserved to the court by consent of the parties. Hardy v. Pennington, 187 Ga. 523 ( 1 S.E.2d 667); Banda v. Banda, 192 Ga. 5 ( 14 S.E.2d 479); Breen v. Breen, 208 Ga. 767 (1) ( 69 S.E.2d 572). In the instant case, it appears that the parties agreed to the alimony settlement and that their agreement was made the judgment of the court; that there was no jury trial; and that the decree recited that the court retained jurisdiction for the purpose of modification of the decree.
The fact that a judge of the superior court is empowered to take into consideration a change in the father's financial condition in determining whether or not he should be adjudged in contempt does not have the effect of empowering the judge to abrogate or modify the liability as fixed by the decree. Banda v. Banda, 192 Ga. 5 ( 14 S.E.2d 479), and cases cited. There is no allegation that the father complied with the requirement of the decree by giving the mother notice six hours in advance when he desired to have the children visit him, or that he paid the $22 per week awarded as alimony for support of the children until he was discharged by the railroad company.
Attorneys for the grandmother insist that, inasmuch as there are instances where judgments granting permanent alimony and reserving in the court the right to subsequently alter the conditions have been held valid, a judgment awarding custody of children should be given the same effect. Ordinarily, judgments for permanent alimony cannot be changed, an exception thereto being where the judgment is by agreement between the parties and the agreement is incorporated in the decree. Hardy v. Pennington, 187 Ga. 523 (1), ( 1 S.E.2d 667); Banda v. Banda, 192 Ga. 5 ( 14 S.E.2d 479); Chandler v. Chandler, 204 Ga. 40 (1) ( 48 S.E.2d 841). In the instant case there is nothing to show any agreement between the parties as to the custody and, accordingly, no ruling is made on the effect of a decree awarding custody by agreement with a reservation for a subsequent change in the discretion of the court.
The main question for determination by this court, under the record in this case, is whether or not the trial judge erred in undertaking to revise or reform the previous verdict and decree for alimony by relieving the husband from paying alimony so long as the minor children reside beyond the jurisdiction of the court. It has been held by this court many times that a verdict and decree for permanent alimony can not be revised by the trial judge. See Coffee v. Coffee, 101 Ga. 787 ( 28 S.E. 977); Wilkins v. Wilkins, 146 Ga. 382 ( 91 S.E. 415); Banda v. Banda, 192 Ga. 5 ( 14 S.E.2d 479); Torras v. McDonald, 196 Ga. 347 ( 26 S.E.2d 598). The trial judge erred in that part of the order excepted to, which, in effect, revised a verdict and decree for permanent alimony. Since both parties procured a part of the substantial relief sought by each, the fixing of costs was a matter within the discretion of the trial judge.
Zimmerman v. Tucker, 64 Ga. 432, 434. The claim of exemption of wages from garnishment, based upon the Code, § 46-208, is ineffective against a decree for alimony. Bates v. Bates, 74 Ga. 105; Caldwell v. Central of Georgia Railway Co., 158 Ga. 392 ( 123 S.E. 708). Nor will an affidavit of illegality reach this situation, because at the time the garnishment proceeding was instituted no execution had been issued on the judgment upon which to base it. Code, § 39-1001; Tanner v. Wilson, 183 Ga. 53, 57 ( 187 S.E. 625). While equity will not enjoin garnishment merely because of annoyance by repetition ( Raines v. Raines, 138 Ga. 790 (6), 76 S.E. 61; Banda v. Banda, 192 Ga. 5 (2), 6, 14 S.E.2d 479), since it is based upon a judgment which upon the allegations of the petition was subject to be canceled, the garnishment will be arrested pending the proceeding to cancel. Since there is no adequate and complete remedy at law, for the reasons hereinabove stated, equity will enjoin enforcement of a judgment and decree its satisfaction where it has been paid.
The Georgia Supreme Court has ruled that past due alimony or child support is vested and cannot be modified in a factual situation such as this case. Roberts v. Mandeville, 217 Ga. 90, 121 S.E.2d 150 (1961); Fricks v. Fricks, 215 Ga. 137, 109 S.E.2d 596 (1959); Banda v. Banda, 192 Ga. 5, 14 S.E.2d 479 (1941). The Texas Supreme Court has extended full faith and credit to foreign alimony decrees where by the laws of a sister state the arrearages have become vested and absolute.