Roberts v. Roberts , 212 Ga. 770 ( 1956 )

Head, Justice.

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.