Bickford v. Bickford

Nichols, Justice.

This is the second appearance of this case before this court. On the first appearance (Bickford v. Bickford, 228 Ga. 353, 357 (185 SE2d 756)), it was held that a verdict in a divorce action which awarded the wife described property as permanent alimony but which included no provision for periodic payments of alimony to her, although it sought to preserve her right to later apply for periodic cash payments of alimony, was not subject to being set aside and a new trial granted upon the ground . . that the verdict was the result of other considerations and that it was rendered in ignorance of the fact that the jury’s intentions with reference to it could not be legally carried out, . . . [and that] for this reason the verdict and judgment based thereon are contrary to law and should be set aside.” Bickford v. Bickford, supra, p. 358. After the judgment overruling the motion for new trial was affirmed by this court, the wife, appellant in the present case, filed an "application for award of permanent alimony,” which was dismissed upon the motion of the former husband. The appeal is from this judgment. Held:

1. Under decisions exemplified by Aetna Cas. &c. Co. v. Bullington, 227 Ga. 485 (181 SE2d 495), the divorce decree was final before the application for permanent alimony was filed, and the trial court, under such circumstances, is without authority to reopen the divorce case to permit the wife to seek periodic payments of alimony unless the decree is one permitting such issue to be considered again.

2. The provisions of the Act of 1955 (Ga. L. 1955, pp. 630, 632) as amended (Code Ann. §30-220 et seq.) do not authorize a modification of the original decree inasmuch as the husband was not required by the original decree to make periodic payments (Code Ann. §30-222), but to the contrary, the original verdict and decree sought merely to retain the right to order periodic payments in the future.

3. Except as to those cases which come within the provisions of the Act of 1955, supra, the law as it existed prior to the adoption of such Act controls in cases where the modification of an alimony decree is sought, and the general rule is that a decree awarding permanent alimony cannot be modified or revised by the trial judge after the final decree has been rendered. 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 SE2d 667); Banda v. Banda, 192 Ga. 5 (14 SE2d 479); Breen v. Breen, 208 Ga. 767 (1) (69 SE2d 572).” Fricks v. Fricks, 215 Ga. 137 (1) (109 SE2d 596). See also Zuber v. Zuber, 215 Ga. 314 (110 SE2d 370); Daniel v. Daniel, 216 Ga. 567 (118 SE2d 369).

Submitted May 9, 1972 Decided June 15, 1972. J. Ralph McClelland, Jr., for appellant. Westmoreland, Hall & Bryan, Harry P. Hall, Jr., J. M. Crawford, for appellee.

The instant case was tried by a jury and does not meet the requirement that the parties must have consented to the future modification of the alimony award. The failure of the husband to appeal from the language in the verdict and decree is not sufficient to show that this was with his consent. See Daniel v. Daniel, supra.

The trial court did not err in sustaining the motion to dismiss.

Judgment affirmed.

All the Justices concur, except Hawes and Gunter, JJ., who dissent.