This court has held that based upon the language of Code Ann. § 30-221, a judgment for child support may be modified only by raising or lowering the amount of the payments. Kendrick v. Kendrick, 218 Ga. 284 ( 127 S.E.2d 379) (1962); Gallant v. Gallant, 223 Ga. 397 ( 156 S.E.2d 61) (1967). In Nash v. Nash, 244 Ga. 749 ( 262 S.E.2d 64) (1979), we held that while periodic payments for child support could be changed from a group award to a per capita award in a modification action, other terms and conditions of the original judgment could not be changed.
Accordingly, the original decree did not require the former husband to pay, in addition to normal child support, the college education expenses of the children. Under decisions exemplified by Kendrick v. Kendrick, 218 Ga. 284 ( 127 S.E.2d 379) (1962), and Butterworth v. Butterworth, 227 Ga. 301 ( 180 S.E.2d 549) (1971) and 228 Ga. 277 ( 185 S.E.2d 59) (1971), the decree appealed from in this case providing in addition to child support an amount to be used for the college expenses of the then two minor children of the couple was reversible error, as was that part of the decree which required the former husband to pay child support into a college fund while he was supporting such children. The case is remanded to the trial court with direction that a new decree be entered in accordance with this opinion.
(Emphasis supplied.) Gallant v. Gallant, 223 Ga. 397 (3) ( 156 S.E.2d 61), citing (on p. 400) Kendrick v. Kendrick, 218 Ga. 284 ( 127 S.E.2d 379) and Morris v. Myers, 219 Ga. 278 ( 133 S.E.2d 22). Thus, it was error to modify the original decree by the creation of an educational trust fund in the event of cessation of alimony payments for the appellee's support; the provision for child support to increase in the future as each child became twelve years old; and the provision for payments to be merely for the "support" of the children, rather than for their "support, maintenance and education," as provided in the original decree. Enumerated errors 1, 2 and 3 are, therefore, meritorious.
The defendant contends that the alimony judgment was based on a contract of the parties which was ratified by them without provision for subsequent modification; that the plaintiff by accepting the benefits under the contract cannot seek to repudiate it because this would unreasonably interfere with the right to contract; and that a change in the termination date of payments on behalf of the children will alter the terms of the contract. In Kendrick v. Kendrick, 218 Ga. 284 ( 127 S.E.2d 379), it was held that on an application to revise and modify an alimony judgment, the merits of whether the wife or children were entitled to alimony and support were not in issue. The only issue in such an application is "whether there has been such a substantial change in the income and financial status of the husband as to warrant either a downward or upward revision and modification of the permanent alimony judgment ... the jury ... had no legal authority to find a verdict upon which a valid judgment could be entered which revised and modified the original child support judgment in any respect except as to the amount it required the defendant to pay the plaintiff each month."
50 per week. The Act of 1955 (Ga. L. 1955, pp. 630-632), as amended ( Code Ann. §§ 30-220 — 30-225), makes no provision for modification of a child support judgment except where there has been a substantial change in the income "or" financial status ( Perry v. Perry, 213 Ga. 847, 852 ( 102 S.E.2d 534)) of the father subsequently to the rendition of such judgment. Kendrick v. Kendrick, 218 Ga. 284 ( 127 S.E.2d 379); Hooks v. Avret, 219 Ga. 743 ( 135 S.E.2d 899). Judgment reversed. All the Justices concur.
3. Code Ann. § 30-221 (Ga. L. 1955, pp. 630, 631) provides for a downward or upward revision of a permanent alimony judgment only where a substantial change in the income and financial status of the husband is shown. In Kendrick v. Kendrick, 218 Ga. 284 ( 127 S.E.2d 379), this court held that Code Ann. § 30-221 conferred no legal authority upon the trial court to revise or modify the original child support judgment in any respect except as to the amount it required the husband to pay. See Morris v. Myers, 219 Ga. 278 ( 133 S.E.2d 22). Thus, it was error to modify the original decree by requiring the appellant to make child support payments in stated amounts until each child attained "majority" rather than the "age of 18" and in not providing for a reduction in the amount of child support upon the appellee's remarriage as appeared in the original decree.
The Act of 1955 (Ga. L. 1955, pp. 630, 631; Code Ann. §§ 30-220 through 30-225) makes no provision for modification or revision of a child support judgment except where there has been a substantial change in the income "or" financial status, Perry v. Perry, 213 Ga. 847, 852 ( 102 S.E.2d 534), of the father subsequent to the rendition of such judgment. Kendrickv. Kendrick, 218 Ga. 284 ( 127 S.E.2d 379); Perry v. Williamson, 219 Ga. 701 ( 135 S.E.2d 412). Since there clearly was no decrease in income alleged in the petition, the instant action is predicated solely on an attempt to show a substantial change downward in the financial status as of the father. In order to determine whether there has been such a change in the financial condition of the father a comparison must be made between his financial status as of the time of the original decree and the time the petition for modification is brought.
This Act makes no provision for modifying and revising such a judgment for any other reason. Kendrick v. Kendrick, 218 Ga. 284 ( 127 S.E.2d 379). But a petition to modify and revise such a judgment must plainly, fully and distinctly allege the facts upon which the petitioner relies for such relief; otherwise, it is subject to general demurrer. Welch v. Welch, 213 Ga. 589 (2) ( 100 S.E.2d 431).
Legislative intent is not here involved for the further reason that such rule of construction has no application where the language of a statute is, as here, clear and unambiguous. See New Amsterdam Cas. Co. v. McFarley, 191 Ga. 334 ( 12 S.E.2d 355); Aldridge v. Federal Land Bank of Columbia, 203 Ga. 285 ( 46 S.E.2d 578); Kendrick v. Kendrick, 218 Ga. 284 ( 127 S.E.2d 379). It has been argued in the dissent that the language in Code § 105-1806 referring to "this Code" referred to the 1933 Code only.
00 a year. In Kendrick v. Kendrick, 218 Ga. 284, 127 S.E.2d 379, the Supreme Court of Georgia held that under a 1955 statute of that state (Ga.L. 1955, p. 630, Code § 30-207) the courts were empowered to revise and modify a permanent judgment for alimony or a permanent award for the support of a minor child or children where there had been a substantial change in the income or financial status of the husband or father. Since the entry of the judgment in 1963 the defendant has moved to Rutherford County, Tennessee, and is not, and has not been since his removal to Tennessee, subject to personal service of the writs of the Georgia courts.