Opinion
19546.
ARGUED NOVEMBER 14, 1956.
DECIDED DECEMBER 5, 1956.
Alimony, etc. Before Judge Manning. Cobb Superior Court. August 4, 1956.
Frank D. Holcomb, for plaintiff in error.
There is no question for determination by this court in the present case, since the sole assignment of error involves a consideration of the evidence, which is neither specified as material, nor included in the record.
ARGUED NOVEMBER 14, 1956 — DECIDED DECEMBER 5, 1956.
On April 9, 1956, Carol M. Roberts filed a petition against Hugh A. Roberts, in which she prayed for (a) process; (b) "alimony and attorney's fees for the maintenance of this action"; (c) divorce; and (d) other and further relief. This case was No. 3333 in Cobb Superior Court.
On June 23, 1956, the husband filed an answer and cross-action. He asserted that in case No. 3019 in Cobb Superior Court, which was a suit for alimony heard by the court without the intervention of a jury, the court awarded the wife $35 per week as alimony for the support of herself and their minor child; that a certified copy of the judgment is attached (the certified copy was attached by amendment); and that the judgment does not state whether the award is temporary or permanent. He alleged that, on the date of the alimony judgment, the wife was unemployed and had no independent income; that she is now employed at a salary of approximately $66 per week; and that the payment of alimony constitutes an undue hardship of which he should be relieved. The prayers of the cross-action were: (a) that the wife's "prayer (b)" be denied; (b) that the judgment in case No. 3019 be reviewed by the court on a change of conditions, and the judgment be reduced to an amount sufficient to support the minor child; (c) that he be awarded a divorce; (d) that rule nisi issue, requiring the wife to show cause why his prayers should not be granted; and (e) for other and further relief.
The copy of the judgment in case No. 3019 shows that it was signed on April 9, 1956. The court recited: that the case came on regularly to be heard at the call of the calendar at the April term of Cobb Superior Court; there was no appearance by the husband and no answer had been filed; the wife agreed that the case be tried without the intervention of a jury; evidence was heard; and it appeared that personal service had been perfected on the husband. It was ordered: that permanent custody of the minor child of the parties should be in the wife; "the defendant pay to the plaintiff as alimony for her support and the support of said child the sum of $35 per week commencing Saturday, April 14, 1956, said sum to be paid to the Clerk of Cobb Superior Court each and every Saturday thereafter; let the defendant pay $100 as attorney's fees for the maintenance of this action . . . "; certain personal property be awarded to each; and the husband be restrained from violence toward the wife or child.
The court ordered the wife to show cause before him on July 5, 1956, why the prayers of the husband's cross-action should not be allowed and the "temporary alimony" previously awarded be reviewed by the court.
The wife filed general and special demurrers to the cross-action, and an answer in which she prayed for attorney's fees. She filed an amendment to her petition, striking out the prayer for alimony in the petition. The court overruled the demurrers of the wife to the cross-action except one special demurrer, and the husband was allowed to amend to meet this demurrer. The renewed demurrers of the wife were overruled.
On August 4, 1956, the court entered an order as follows: "The above matter having come on to be heard in chambers on a rule by the defendant [husband] wherein in his cross-bill he alleged a change of condition which would entitle him to a modification of an alimony decree rendered by this court in case No. 3019; and evidence having been presented by the defendant regarding his financial obligations and the fact that his wife was not working at the time of the filing of this suit (at the time of the rendition of the judgment in suit No. 3019) but is now working at an alleged salary of $66 per week;
"Upon the close of the defendant's (movant in the rule nisi) evidence, before the introduction of any evidence by the respondent, counsel for the respondent moved the court that there was insufficient evidence as to a change of condition on the part of the movant; and deny relief prayed;
"After hearing argument of counsel it is ordered and adjudged that the rule nisi be dismissed and the respondent be discharged from further prosecution of the rule upon the grounds that there is not sufficient evidence before this court to support the contentions of the movant as to a change of condition so as to justify the granting of the prayers of the movant as to reduction of the alimony awarded in case No. 3019."
The bill of exceptions assigns error on the order of August 4, 1956, on the ground that it was contrary to law, and that the court should have denied the motion to dismiss the rule nisi.
The only question presented by the bill of exceptions is whether the trial court erred in refusing to modify a previous award of alimony. The plaintiff in error asserts that the award of alimony was temporary, and not permanent. This court is unable to determine, from the record, which was awarded. No pleadings in the alimony case became a part of the record in the present case. The trial judge in the rule nisi referred to the previous award as "temporary alimony." The copy of the judgment attached to the cross-action would indicate that it was a permanent award of alimony. Apparently the award was made under the provisions of Code § 30-213, providing for alimony for the wife where no divorce action is pending.
Whether the previous award of alimony was temporary or permanent, it was not abated by the mere filing of the action for divorce by the wife. Code § 30-213; Higgs v. Higgs, 144 Ga. 20 ( 85 S.E. 1041); Evans v. Evans, 191 Ga. 752 ( 14 S.E.2d 95); Cox v. Cox, 197 Ga. 260 (3) ( 29 S.E.2d 83). We do not understand, however, that this contention is made by the plaintiff in error, since in the brief of his counsel it is stated: "To the court's ruling dismissing rule nisi, plaintiff in error excepts on the ground that sufficient evidence was presented to show a change of condition under the law applicable to this case, that the court erred in dismissing the rule nisi, and the failure of the court to grant the relief prayed constituted an abuse of the court's discretion under the evidence presented."
It is unnecessary to deal with the rules of evidence that might apply in cases involving the modification of temporary awards of alimony and permanent awards of alimony. See Fried v. Fried, 210 Ga. 457, 462 ( 80 S.E.2d 796); Ga. L. 1955, pp. 630, 631 (Code, Ann. Supp., § 30-220). No evidence was brought to this court in the present case, and we are unable to determine whether or not the trial judge abused his discretion in refusing to modify the previous alimony award. Jennison v. Jennison, 136 Ga. 202 (3b) ( 71 S.E. 244, Ann. Cas. 1912C 441).
Judgment affirmed. All the Justices concur.