2020 Georgia Code
Title 19 - Domestic Relations
Chapter 6 - Alimony and Child Support
Article 1 - General Provisions
§ 19-6-18. Revision of Judgment for Permanent Alimony and Child Support Rendered Prior to July 1, 1977; Petition and Hearing; Expenses of Litigation

1. The judgment of a court providing permanent alimony for the support of a wife or child or children, or both, rendered prior to July 1, 1977, shall be subject to revision upon petition filed by either the husband or the wife showing a change in the income and financial status of the husband. The petition shall be filed and returnable under the same rules of procedure applicable to divorce proceedings. The petition shall be filed in the proper venue provided by law in civil cases. No petition may be filed by the wife under this Code section within a period of two years from the date of the filing of a previous petition by the wife under this Code section. No petition may be filed by the husband under this Code section within a period of two years from the date of the filing of a previous petition by the husband under this Code section. After hearing both parties and the evidence, the jury, or the judge where a jury is not demanded, may modify and revise the previous judgment so as to provide for the wife or child or children, or both, in accordance with the changed income and financial status of the husband, if such a change in the income and financial status of the husband is satisfactorily proved so as to warrant the modification and revision. In the hearing upon a petition filed as provided in this Code section, testimony may be given and evidence introduced relative to the income and financial status of the wife.
2. Upon an application as authorized in subsection (a) of this Code section, the merits of whether the wife, or child or children, or both, are entitled to alimony and support are not in issue, but only 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.
3. An application authorized in subsection (a) of this Code section can be filed only where the husband has been ordered by the final judgment in an alimony or divorce and alimony action to pay permanent alimony in weekly, monthly, annual, or similar periodic payments, and not where the wife, or child or children, or both, have been given an award from the corpus of the husband's estate in lieu of such periodic payment.
4. Where an application authorized in subsection (a) of this Code section is filed by the husband, the court may require the husband to pay reasonable expenses of litigation as may be incurred by the wife, either for herself or the child or children, or both, in defense thereof.

(Ga. L. 1955, p. 630, §§ 1-4; Ga. L. 1964, p. 713, § 1.)

- For article discussing Georgia alimony provisions allowing modification of judgments with respect to federal and state constitutional limitations, see 18 Ga. B.J. 153 (1955). For article, "The Georgia Long Arm Statute: A Significant Advance in the Concept of Personal Jurisdiction," see 4 Ga. St. B.J. 13 (1967). For article surveying Georgia cases dealing with domestic relations from June 1977 through May 1978, see 30 Mercer L. Rev. 59 (1978). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For article discussing the law on alimony modification, see 19 Ga. St. B.J. 130 (1983). For annual survey on law of domestic relations, see 42 Mercer L. Rev. 201 (1990). For note discussing Georgia's child support laws, their problems, and some proposed solutions, see 11 Ga. L. Rev. 387 (1977). For comment on Varble v. Hughes, 205 Ga. 29, 52 S.E.2d 303 (1949), see 12 Ga. B.J. 78 (1949). For comment concerning full faith and credit ramifications of alimony decrees, in light of Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686 (1969), see 18 J. of Pub. L. 517 (1969). For comment on Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686 (1969), as to enforcement of a foreign modification of a Georgia child support decree, see 21 Mercer L. Rev. 675 (1970). For comment, "Antenuptial Agreements and Divorce in Georgia: Scherer v. Scherer," see 17 Ga. L. Rev. 231 (1982).

ANALYSIS

• General Consideration
• Procedure for Modification
• Waiver of Right to Modification
• Change in Income or Financial Status
• What Constitutes Permanent Alimony Judgment
• Expenses of Litigation

General Consideration

Constitutionality.

- See Bugden v. Bugden, 225 Ga. 413, 169 S.E.2d 337 (1969).

Section does not violate equal protection principles. Dill v. Dill, 232 Ga. 231, 206 S.E.2d 6 (1974).

- Ga. L. 1964, p. 713, § 1, being statutory only, is subordinate to U.S. Const., Art. IV, Sec. I, the full faith and credit clause. Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686 (1969).

§ 42-8-34 and subsection (a) of O.C.G.A. § 19-6-18 compared. - See Hudson v. State, 248 Ga. 397, 283 S.E.2d 271 (1981).

- When definite amount of alimony or child support is awarded, automatic future modification is not invalid. Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875 (1981).

- Modification of judgment incorporating contract between husband and wife governing property and alimony rights between them pursuant to Ga. L. 1964, p. 713, § 1 (see now O.C.G.A. § 19-6-18) is not an unconstitutional impairment of obligation of contracts in violation of Ga. Const. 1976, Art. I, Sec. I, Para. VII (see now Ga. Const. 1983, Art. I, Sec. I, Para. X). This is so because, technically, what is being modified is a judgment of the court and not a contract. Kitfield v. Kitfield, 237 Ga. 184, 227 S.E.2d 9 (1976).

Ga. L. 1964, p. 713, § 1 (see now O.C.G.A. § 19-6-18) does not offend U.S. Const., Art. I, Sec. X, Cl. I or Ga. Const. 1976, Art. I, Sec. I, Para. VII (see now Ga. Const. 1983, Art. I, Sec. I, Para. X), which provides that no law impairing an obligation of contracts shall be enacted, and this is true even though the amount of alimony or support so awarded by the judgment, as well as the time during which judgment was to be paid, was agreed to in writing by the parties. Nelson v. Roberts, 216 Ga. 741, 119 S.E.2d 545 (1961).

- See McGuire v. McGuire, 228 Ga. 782, 187 S.E.2d 859 (1972).

- Statute was passed to give parties to Georgia divorce decree statutory power to seek modification of provisions of decree relating to permanent alimony support on petition of either party. McGuire v. McGuire, 228 Ga. 782, 187 S.E.2d 859 (1972).

Law reflects public policy of state in relation to its subject matter. Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686 (1969).

Agreement based on 1976 version of section cannot be legislatively modified by amendments which change law and law's application. Shure v. Shure, 245 Ga. 36, 262 S.E.2d 800 (1980).

- Ga. L. 1955, p. 630, §§ 1-4 neither expressly nor by implication shows legislative intent that it should be applied to alimony judgments rendered prior to the law's passage. Anthony v. Penn, 212 Ga. 292, 92 S.E.2d 14 (1956).

- Prior to enactment of Ga. L. 1955, p. 630, §§ 1-4, a final decree for permanent alimony not excepted to passed beyond discretionary control of the trial judge, and the judge thereafter had no authority to modify the judgment's terms unless authority to do so was reserved in the decree. Ethridge v. Echols, 212 Ga. 597, 94 S.E.2d 377 (1956).

- Generally, decrees not coming within provisions of Ga. L. 1955, p. 630, §§ 1-4 cannot be modified or revised by the trial court. This general rule is subject to exception in those instances when: (1) case was tried before court without jury, and matter of permanent alimony was settled by agreement of parties, which agreement was incorporated in and made part of final judgment and decree; and (2) authority to change or modify decree as to alimony was reserved to the court by the consent of the parties. Daniel v. Daniel, 216 Ga. 567, 118 S.E.2d 369 (1961).

- Trial court has no authority save that provided by this statute to revise or otherwise modify child support decree after term in which such judgment was rendered has expired. Davis v. Davis, 218 Ga. 250, 127 S.E.2d 296 (1962); Mullins v. Mullins, 219 Ga. 816, 136 S.E.2d 379 (1964).

After rendition of final divorce decree containing award for alimony in periodic payments, the only way to alter alimony award is pursuant to Ga. L. 1964, p. 713, § 1. Bradley v. Dockery, 232 Ga. 692, 208 S.E.2d 496 (1974), overruled on other grounds, Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007); Meredith v. Meredith, 238 Ga. 595, 234 S.E.2d 510 (1977); Skinner v. Skinner, 252 Ga. 512, 314 S.E.2d 897 (1984).

Jury verdict stating fixed sum of alimony per calendar month is final and is subject to change only upon showing under Ga. L. 1964, p. 713, § 1. Fitts v. Fitts, 231 Ga. 528, 202 S.E.2d 414 (1973), overruled on other grounds, Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977); Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875 (1981).

- Until proceedings are instituted to modify alimony award, and judgment decreasing amount of alimony is duly entered, original alimony decree is res judicata of amount father must pay for support of children. Roberts v. Mandeville, 217 Ga. 90, 121 S.E.2d 150 (1961); Vickers v. Vickers, 220 Ga. 258, 138 S.E.2d 308 (1964).

When parties have entered into valid alimony contract, which might have provided that it was to terminate upon remarriage of wife, but which did not so provide, and such contract was made judgment of court, the judgment is binding and enforceable until modified, vacated, or set aside. Holland v. Holland, 221 Ga. 418, 144 S.E.2d 753 (1965).

Until a petition under O.C.G.A. § 19-6-18 or O.C.G.A. § 19-6-19 is brought, the original permanent decree is res judicata as to the amount a father is obligated to pay for the support of his children. Bisno v. Biloon, 161 Ga. App. 351, 291 S.E.2d 66 (1982), overruled on other grounds, State ex rel. McKenna v. McKenna, 253 Ga. 6, 315 S.E.2d 885 (1984).

Trial judge on contempt proceeding lacks discretion to modify decree for divorce and alimony. Roberts v. Mandeville, 217 Ga. 90, 121 S.E.2d 150 (1961); Vickers v. Vickers, 220 Ga. 258, 138 S.E.2d 308 (1964); Meredith v. Meredith, 238 Ga. 595, 234 S.E.2d 510 (1977).

In a contempt citation as opposed to a suit for alimony modification, trial court has no authority to reduce amount awarded in former divorce decree. Balasco v. Balasco, 235 Ga. 214, 219 S.E.2d 104 (1975).

On hearing of rule for contempt, court is without authority to modify original decree by providing that husband may make future payments, even for one year period, in lesser amount than he was required to make under original decree. Deese v. Deese, 230 Ga. 105, 196 S.E.2d 16 (1973).

Trial judge in contempt proceeding for failure to pay child support was without authority to forgive portion of amount that father had failed to pay on judgment for support of minor children; and had no right to reduce amount that would be due in future since no proceeding had been brought for that purpose. Hall v. Hall, 230 Ga. 873, 199 S.E.2d 798 (1973).

- If parties to decree agree to modification, the parties must present agreement to court for approval. Meredith v. Meredith, 238 Ga. 595, 234 S.E.2d 510 (1977).

Statute has been interpreted as being permissive; thus, the question on appeal is whether evidence demands revision. Barker v. Barker, 233 Ga. 170, 210 S.E.2d 705 (1974); Trippe v. Trippe, 237 Ga. 159, 227 S.E.2d 46 (1976).

Right of modification is entirely dependent on entry of original alimony judgment. No new action would accrue merely because of change in income and financial status if alimony judgment had not been previously rendered. Ivey v. Ivey, 234 Ga. 532, 216 S.E.2d 827 (1975).

- Statute applies only to modification of Georgia final decrees as to permanent alimony. Slowik v. Knorr, 222 Ga. 669, 151 S.E.2d 726 (1966); Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686 (1969); McGuire v. McGuire, 228 Ga. 782, 187 S.E.2d 859 (1972).

Georgia court cannot modify final decree of foreign state court awarding permanent alimony for support of minor children. McGuire v. McGuire, 228 Ga. 782, 187 S.E.2d 859 (1972).

Foreign court decree cannot be ignored or set aside as contrary to public policy. Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686 (1969).

Statute provides for jury trial of issue of modification of previous alimony judgment. Johnston v. Still, 225 Ga. 222, 167 S.E.2d 646 (1969).

- Statute confers authority and power on court rendering alimony or child support judgment to revise and modify the judgment either downward or upward and in no other respect. The court has no legal authority to revise and modify the original judgment in any respect except as to the amount the court required to be paid each month. Kendrick v. Kendrick, 218 Ga. 284, 127 S.E.2d 379 (1962).

Statute confers no legal authority upon trial court to revise or modify original child support judgment in any respect except as to amount court requires husband to pay. Gallant v. Gallant, 223 Ga. 397, 156 S.E.2d 61 (1967).

- If custody of child should be changed from mother to father, who would then provide for the child's support, this would be such a change in his financial status as would authorize revision of judgment which provided permanent alimony to wife for child's support. Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958).

- Section is inapplicable in situations where child support payments are terminated contemporaneous to a custody change from mother to father. Hasty v. Duncan, 239 Ga. 797, 239 S.E.2d 7 (1977).

Termination of support payments by father upon obtaining child custody is not a "modification and revision" of child support and thus Ga. L. 1964, p. 713, § 1 does not apply. Hasty v. Duncan, 239 Ga. 797, 239 S.E.2d 7 (1977).

- Proper construction of statute prohibits filing of petition for modification of alimony or child support within two years of filing of previous petition for modification of alimony or child support by same party. Wilde v. Wilde, 239 Ga. 750, 239 S.E.2d 3 (1977).

- Ga. L. 1964, p. 713, § 1 (see now O.C.G.A. § 19-6-18) relates strictly to petitions for modification of alimony or child support, and should not be read so as to prohibit filing of such petition within two years of filing of petition for change of custody by same party under former Code 1933, § 30-127 (see now O.C.G.A. § 19-9-1). Wilde v. Wilde, 239 Ga. 750, 239 S.E.2d 3 (1977).

- See Ray v. Ray, 247 Ga. 467, 277 S.E.2d 495 (1981).

- Any order of support issued by a court of this state, entered in an action filed under O.C.G.A. Art. 2, Ch. 11, T. 19 (Uniform Reciprocal Enforcement of Support Act), shall not supersede any previous order of support issued in a divorce or separate maintenance action, and the latter order will not constitute a modification of the former order; thus, amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both. Ray v. Ray, 247 Ga. 467, 277 S.E.2d 495 (1981).

Evidence of an informal change in custody is not admissible in an action for nonpayment of child support since any modifications of the settlement must be made through O.C.G.A. § 19-6-18. Coley v. Coley, 169 Ga. App. 426, 313 S.E.2d 129 (1984).

- Considerations of judicial economy dictate that parties to a contempt proceeding be allowed to present the court with a binding consent judgment settling the matter of future child support payments. However, neither party to such a consent judgment may file another action seeking modification within two years of the filing of what began as a contempt action. Moody v. Moody, 252 Ga. 210, 312 S.E.2d 330 (1984).

- When a party has unsuccessfully brought an action seeking increased child support under O.C.G.A. Art. 2, Ch. 11, T. 19, (Uniform Reciprocal Enforcement of Support Act) that party may not seek an increase in child support under O.C.G.A. § 19-6-18 within two years. Ray v. Ray, 247 Ga. 467, 277 S.E.2d 495 (1981).

- Trial court has no authority to modify the child support provisions of a final judgment and divorce decree in a garnishment action; such a modification must be accomplished by the filing of a petition in superior court pursuant to O.C.G.A. § 19-6-18 or O.C.G.A. § 19-6-19. In addition, the court lacks equity jurisdiction in garnishment cases, even under unusual and exceptional circumstances. Davis v. Davis, 220 Ga. App. 745, 470 S.E.2d 268 (1996).

Award providing for automatic adjustments based on changes in Consumer Price Index is valid. Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875 (1981).

Provision for automatic adjustments based on changes in Consumer Price Index does not preclude either party from seeking modification under O.C.G.A. § 19-6-18. Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875 (1981).

Cited in Goodloe v. Goodloe, 211 Ga. 894, 89 S.E.2d 654 (1955); Ethridge v. Echols, 212 Ga. 597, 94 S.E.2d 377 (1956); Bethke v. Taylor, 214 Ga. 679, 107 S.E.2d 217 (1959); Fricks v. Fricks, 215 Ga. 137, 109 S.E.2d 596 (1959); Lewis v. Lewis, 215 Ga. 7, 108 S.E.2d 812 (1959); Zuber v. Zuber, 215 Ga. 314, 110 S.E.2d 370 (1959); Allen v. Withrow, 215 Ga. 388, 110 S.E.2d 663 (1959); Wills v. Wills, 215 Ga. 556, 111 S.E.2d 355 (1959); Stephens v. Sudderth, 216 Ga. 222, 115 S.E.2d 519 (1960); Roberts v. Mandeville, 217 Ga. 90, 121 S.E.2d 150 (1961); Nelson v. Roberts, 217 Ga. 613, 124 S.E.2d 85 (1962); Kitchin v. Kitchin, 219 Ga. 417, 133 S.E.2d 880 (1963); Mallard v. Mallard, 221 Ga. 480, 145 S.E.2d 533 (1965); Holland v. Holland, 222 Ga. 467, 150 S.E.2d 673 (1966); Wayman v. Wayman, 222 Ga. 535, 150 S.E.2d 840 (1966); Winn v. Winn, 222 Ga. 687, 152 S.E.2d 371 (1966); Dance v. Smith, 223 Ga. 328, 155 S.E.2d 10 (1967); Everly v. Everly, 223 Ga. 853, 159 S.E.2d 78 (1968); Grizzard v. Grizzard, 224 Ga. 42, 159 S.E.2d 400 (1968); Parker v. Parker, 224 Ga. 54, 159 S.E.2d 412 (1968); Bodrey v. Bodrey, 224 Ga. 348, 161 S.E.2d 864 (1968); Terrell v. Fair, 224 Ga. 745, 164 S.E.2d 843 (1968); Knox v. Knox, 225 Ga. 481, 169 S.E.2d 805 (1969); Mallin v. Mallin, 226 Ga. 628, 176 S.E.2d 709 (1970); Ferris v. Ferris, 227 Ga. 465, 181 S.E.2d 371 (1971); Butterworth v. Butterworth, 228 Ga. 277, 185 S.E.2d 59 (1971); McGuire v. McGuire, 228 Ga. 782, 187 S.E.2d 859 (1972); Weeks v. High Point Sprinkler Co., 125 Ga. App. 511, 188 S.E.2d 144 (1972); Bickford v. Bickford, 229 Ga. 229, 190 S.E.2d 70 (1972); Robbins v. Robbins, 127 Ga. App. 351, 193 S.E.2d 193 (1972); Deese v. Deese, 230 Ga. 105, 196 S.E.2d 16 (1973); Haire v. Branch, 129 Ga. App. 164, 199 S.E.2d 127 (1973); McCoy v. Pinnell, 231 Ga. 648, 203 S.E.2d 529 (1974); Johnson v. Johnson, 232 Ga. 103, 205 S.E.2d 270 (1974); Zimmerman v. Zimmerman, 131 Ga. App. 567, 206 S.E.2d 583 (1974); Bradley v. Dockery, 232 Ga. 692, 208 S.E.2d 496 (1974); Livsey v. Livsey, 234 Ga. 53, 214 S.E.2d 520 (1975); Roberson v. Fooster, 234 Ga. 444, 216 S.E.2d 273 (1975); Mitchell v. Mitchell, 235 Ga. 101, 218 S.E.2d 747 (1975); Haberman v. Bivens, 235 Ga. 537, 221 S.E.2d 11 (1975); Frost v. Frost, 235 Ga. 672, 221 S.E.2d 567 (1975); Gerron v. Gerron, 235 Ga. 851, 221 S.E.2d 600 (1976); Palmes v. Palmes, 236 Ga. 115, 223 S.E.2d 86 (1976); Trippe v. Trippe, 237 Ga. 159, 227 S.E.2d 46 (1976); Howerton v. Garrett, 237 Ga. 371, 228 S.E.2d 786 (1976); Quarles v. Quarles, 237 Ga. 703, 229 S.E.2d 452 (1976); In re Smith, 436 F. Supp. 469 (N.D. Ga. 1977); Walters v. Walters, 238 Ga. 237, 232 S.E.2d 240 (1977); Daniel v. Daniel, 239 Ga. 466, 238 S.E.2d 108 (1977); Bache v. Bache, 240 Ga. 3, 239 S.E.2d 677 (1977); Stock v. Commissioner, 551 F.2d 614 (5th Cir. 1977); In re Smith, 436 F. Supp. 469 (N.D. Ga. 1977); Francis v. Pittman, 162 Ga. App. 40, 290 S.E.2d 288 (1982); Everett v. Everett, 256 Ga. 632, 352 S.E.2d 370 (1987).

Procedure for Modification

Exercise of right to petition for modification of child support.

- Right to petition for modification of child support is a right which belongs to the child or children involved which may be exercised at the election of the mother or other person having legal custody of the children under the terms of the divorce decree. Crosby v. Crosby, 249 Ga. 569, 292 S.E.2d 814 (1982).

Proceeding to modify alimony judgment is a new action, not a continuation of a divorce case. Slowik v. Knorr, 222 Ga. 669, 151 S.E.2d 726 (1966); Bugden v. Bugden, 224 Ga. 517, 162 S.E.2d 719 (1968).

- Because a proceeding to modify an alimony judgment is a new action and not a continuation of a divorce case, it is subject to constitutional provisions respecting venue just as any other civil case. Bugden v. Bugden, 224 Ga. 517, 162 S.E.2d 719 (1968).

- Actions to modify alimony and divorce decrees must proceed in the county where the defendant currently resides. Buckholts v. Buckholts, 251 Ga. 58, 302 S.E.2d 676 (1983).

- Proceeding for modification of alimony judgment is an alimony case within the meaning of Ga. Const. 1976, Art. VI, Sec. II, Para. IV (see now Ga. Const. 1983, Art. VI, Sec. VI, Para. II, III, V; Art. VI, Sec. I, Para. VIII; Art. VI, Sec. V, Para. V), giving the Supreme Court jurisdiction of divorce and alimony cases. Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958).

- Law makes prayer for process necessary in petition for divorce. It follows that a petition to alter and revise a final decree fixing an amount of permanent alimony must pray for process and not be filed as a mere pleading or motion in original divorce suit. Davis v. Davis, 218 Ga. 250, 127 S.E.2d 296 (1962).

- Action to modify decree awarding alimony must be filed in county of defendant's residence. Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686 (1969); Hill v. Harper, 230 Ga. 246, 196 S.E.2d 397 (1973).

- Court which renders alimony judgment does not have jurisdiction of action to modify judgment against nonresident of state who has been served only by publication, and who has not waived personal service. Slowik v. Knorr, 222 Ga. 669, 151 S.E.2d 726 (1966).

- Fact that defendant consents to modification of original decree and acquiesces therein by making payments thereunder for several months is irrelevant if the court was wholly without authority to modify the original judgment and decree and was without jurisdiction of the subject matter. Ethridge v. Echols, 212 Ga. 597, 94 S.E.2d 377 (1956).

Petitions pursuant to this section are subject to § 19-5-8. - Petition under Ga. L. 1964, p. 713, § 1 (see now O.C.G.A. § 19-6-18) for modification of alimony judgment was governed by provision of former Code 1933, § 30-113 (see now O.C.G.A. § 19-5-8) that no verdict by default shall be taken in divorce cases. Johnston v. Still, 225 Ga. 222, 167 S.E.2d 646 (1969).

- No particular time need elapse after judgment as prerequisite to petition for modification. Welch v. Welch, 213 Ga. 589, 100 S.E.2d 431 (1957).

- When husband and wife enter into contract for support of wife and a minor, and contract is made part of final decree of divorce, failure of former husband to make child a party to proceedings for modification does not subject his petition to dismissal because the minor child is not an indispensable party to an action to revise the decree. Dalon v. Dalon, 219 Ga. 185, 132 S.E.2d 195 (1963).

Petition for modification must show facts relied upon to authorize relief desired, and must show that facts and circumstances relied upon have occurred since the date of alimony judgment, in case of first petition for revision, and since date of former application, in case of subsequent petition. Welch v. Welch, 213 Ga. 589, 100 S.E.2d 431 (1957).

Language "satisfactorily proved" does not reduce burden of proof to less than preponderance of evidence. Instead, a party must "satisfactorily prove" his or her case by a preponderance of the evidence. Stiltz v. Stiltz, 236 Ga. 308, 223 S.E.2d 689 (1976).

- Trial judge's decision on petition for modification not disturbed on appeal if supported by "some evidence." Berkowitz v. Berkowitz, 239 Ga. 1, 236 S.E.2d 7 (1977).

Modification of a child support obligation in a garnishment action, rather than a petition to modify, was erroneous. Twineham v. Daniel, 223 Ga. App. 25, 476 S.E.2d 814 (1996).

Statutory modification right may be waived by appropriate contract language but courts will not find language waived absent very clear waiver language. Kitfield v. Kitfield, 237 Ga. 184, 227 S.E.2d 9 (1976).

- As to permanent alimony, a decree cannot be modified if there is an agreement between the parties, incorporated in a decree, which waives the right of modification. However, such waiver must be clearly intended and expressed by the person so waiving. Garcia v. Garcia, 232 Ga. 869, 209 S.E.2d 201 (1974).

Waiver of right to modification of judgment which incorporated contract between parties governing property and alimony rights between them has not occurred if language does not provide in clear and unambiguous language, needing no parol explanation, that the appellant waived the right to modify the alimony award. Kitfield v. Kitfield, 237 Ga. 184, 227 S.E.2d 9 (1976).

- Use of term "full, complete, and final settlement" in divorce agreement which was made part of final judgment, alone, does not have effect of constituting waiver of right to seek modification. McLoughlin v. McLoughlin, 234 Ga. 259, 214 S.E.2d 925 (1975).

- Statutory right to petition for a revision of alimony and child support payments insofar as it relates to alimony belongs to the wife and may be waived. But, insofar as it relates to child support, it is a right which belongs to the child or children involved which may be exercised at election of mother or other person having legal custody of children under terms of divorce decree. Since this right belongs to the children and not to the mother, she cannot waive the right. Livsey v. Livsey, 229 Ga. 368, 191 S.E.2d 859 (1972).

Divorced wife cannot waive right of minor children to increased support in accordance with improved financial condition of former husband. Foreman v. Foreman, 234 Ga. 646, 217 S.E.2d 257 (1975).

- Right to child support belongs to child, not to mother, and after award has become part of court's judgment she has no authority to waive the award. Johnson v. Johnson, 233 Ga. 664, 212 S.E.2d 835 (1975).

Right to petition for modification of child support belongs to the children and cannot be waived by the mother. Crosby v. Crosby, 249 Ga. 569, 292 S.E.2d 814 (1982).

Mother cannot barter away child support in return for elimination of father's privileges. Johnson v. Johnson, 233 Ga. 664, 212 S.E.2d 835 (1975).

Change in Income or Financial Status

Alimony judgments rendered prior to 1977.

- Party in alimony action in which final judgment was entered prior to enactment of Ga. L. 1977, p. 1253, § 1, has vested right in judgment not being subject to modification because of change in income of recipient since law in effect at time of judgment did not permit modification on such change. McClain v. McClain, 241 Ga. 422, 246 S.E.2d 187 (1978).

Change in financial status of husband since award is prerequisite to modification. Griffin v. Griffin, 226 Ga. 781, 177 S.E.2d 696 (1970).

- Evidence of the husband's pending inheritance from the husband's deceased parents could be considered for purposes of awarding alimony to a wife. Searcy v. Searcy, 280 Ga. 311, 627 S.E.2d 572 (2006).

Statute allows revision in child support payments as financial condition of parties changes over time. Johnson v. Johnson, 233 Ga. 664, 212 S.E.2d 835 (1975).

To authorize modification requires substantial change in husband's income or in his financial status so as to warrant an upward or downward revision of alimony or child support. Berkowitz v. Berkowitz, 239 Ga. 1, 236 S.E.2d 7 (1977).

Legislature did not intend to require showing of change in both income "and" financial status, but rather a change in husband's income "or" financial status. Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958).

In order to carry out what the judiciary interprets to be intended by the legislature in Ga. L. 1964, p. 713, § 1 (see now O.C.G.A. § 19-6-18), the judiciary reads word "and" as "or," and word "or" is substituted for "and" between words "income" and "financial status" in that statute. Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958).

There is no provision for modification or revision of child support judgment except if there has been a substantial change in income "or" financial status of father subsequent to rendition of such judgment. Hooks v. Avret, 219 Ga. 743, 135 S.E.2d 899 (1964).

- Upon trial of application for modification of alimony decree, the only issue is whether there has been such change in the income or financial status of husband as to warrant a modification and revision of the original decree, either upward or downward, as the case may be. McBrayer v. McBrayer, 227 Ga. 224, 179 S.E.2d 772 (1971).

"Financial status" is much more comprehensive term than "income," and pertains to conditions or circumstances in which a person stands with regard to that person's income and property. McClinton v. McClinton, 217 Ga. 283, 122 S.E.2d 112 (1961).

- In order to determine whether there has been a change in financial status between the two pertinent dates, a comparison must be made between the plaintiff's financial status at the time of judgment and the plaintiff's financial status at the time of the petition. McWilliams v. McWilliams, 216 Ga. 270, 116 S.E.2d 215 (1960).

- To authorize modification of alimony, the crux of the matter is whether or not there has been a substantial change in the husband's ability to pay alimony required by the original decree. Schuster v. Schuster, 221 Ga. 614, 146 S.E.2d 636 (1966).

- The legislature intended that the original alimony judgment could be revised upon a change in the husband's ability to pay, and there might be change in his ability to pay by reason of change in his financial status without any actual change in his income. Perry v. Perry, 213 Ga. 847, 102 S.E.2d 534 (1958); McClinton v. McClinton, 217 Ga. 283, 122 S.E.2d 112 (1961); Parker v. Dyal, 237 Ga. 598, 229 S.E.2d 370 (1976).

Petition may allege change in financial status without alleging change in income. McWilliams v. McWilliams, 216 Ga. 270, 116 S.E.2d 215 (1960).

- In regard to the statute, the legislature meant that irrespective of change in income of husband, there should also be a change in his net worth, affecting his inability to pay the previously prescribed amount or affecting his ability to pay more than the previously prescribed amount. Parker v. Dyal, 237 Ga. 598, 229 S.E.2d 370 (1976).

Change may be shown by decreased financial obligations or other changed conditions even if there has been no increase in income. Livsey v. Livsey, 234 Ga. 53, 214 S.E.2d 520 (1975); Spivey v. Schneider, 234 Ga. 687, 217 S.E.2d 251 (1975).

- It cannot be held as a matter of law that 10 percent increase in former husband's hourly wages is not a substantial change so as to authorize a change in support payments. Rolader v. Pendleton, 231 Ga. 16, 200 S.E.2d 108 (1973).

- Man might become heavily indebted in order to acquire assets for himself, and such indebtedness would be no cause for reduction in alimony payments to support former wife and minor children. Welch v. Welch, 213 Ga. 589, 100 S.E.2d 431 (1957).

Substantial decrease in husband's income or financial status may warrant, but not demand, decrease of alimony. Potts v. Potts, 229 Ga. 827, 194 S.E.2d 471 (1972); White v. White, 233 Ga. 289, 210 S.E.2d 817 (1974); Trippe v. Trippe, 237 Ga. 159, 227 S.E.2d 46 (1976).

- O.C.G.A. § 19-6-18 does not preclude adjustment based on changes in Consumer Price Index to award of fixed amount of alimony. Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875 (1981).

- Fact that the father, subsequent to a divorce decree, voluntarily assumed additional obligation of a second family by marriage did not authorize termination of obligation to the daughter by his former marriage, and especially since it was shown that the income of the father had substantially increased since the date of the alimony decree. Strickland v. Strickland, 220 Ga. 69, 137 S.E.2d 31 (1964).

- While under the provisions of the statute, the trial court is not concerned with whether the wife or children are entitled to alimony or child support, when evidence of change in the husband's income or financial status is disclosed, the court of necessity is concerned with the amount originally awarded, and such fact must be considered in determining if a modification is appropriate under the evidence. Rolader v. Pendleton, 231 Ga. 16, 200 S.E.2d 108 (1973).

- Provision of subsection (b) of Ga. L. 1964, p. 713, § 1 to the effect that the only issue is the change in the former husband's income or financial status is intended merely to exclude consideration of "merits of whether the wife, or child or children, or both, are entitled in alimony and support," and not to exclude the issue of the former wife's income or financial status, evidence relative to which was specifically made admissible by the legislature in subsection (a). Butterworth v. Butterworth, 227 Ga. 301, 180 S.E.2d 549 (1971).

Evidence regarding increased earnings of wife alone does not authorize or require change in the amount of alimony which she is entitled to receive in absence of evidence as to change in the income or financial status of the husband. McBrayer v. McBrayer, 227 Ga. 224, 179 S.E.2d 772 (1971); Butterworth v. Butterworth, 227 Ga. 301, 180 S.E.2d 549 (1971).

- Legislature intended that the prerequisite of revision of child support, either downward or upward, is proof of substantial change in the income or financial status of the former husband, and once this essential fact has been shown, evidence relative to the former wife's income or financial status is relevant, hence admissible, for purpose of equitably determining how much the amount of child support should be modified. Butterworth v. Butterworth, 227 Ga. 301, 180 S.E.2d 549 (1971).

Once evidence is introduced showing change in the former husband's income or financial status, it is proper to consider evidence of the former wife's income or financial status. Rolader v. Pendleton, 231 Ga. 16, 200 S.E.2d 108 (1973).

Unless there is evidence of substantial change in the husband's ability to pay, evidence of the wife's income and financial status becomes immaterial. Stiltz v. Stiltz, 236 Ga. 308, 223 S.E.2d 689 (1976).

- Whether or not the evidence showed that the wife has indulged in illicit relations with a man to whom she was not married was not relevant to any issues as to whether alimony awarded by a previous decree should be continued. McBrayer v. McBrayer, 227 Ga. 224, 179 S.E.2d 772 (1971).

- Petition for modification of alimony judgment must show facts relied on to authorize relief desired, and it must be shown by facts alleged that a change has occurred in the financial status of the husband since the former adjudication. McWilliams v. McWilliams, 216 Ga. 270, 116 S.E.2d 215 (1960).

Petition to modify and revise judgment must plainly, fully, and distinctly allege facts upon which the petitioner relies for such relief; otherwise, the petition is subject to general demurrer (now motion to dismiss). Perry v. Williamson, 219 Ga. 701, 135 S.E.2d 412 (1964).

- Trial court's final award of alimony in the amount of $1,000.00 a month, for a period of three years was upheld on appeal, despite the wife's claims that such was inadequate given the court's temporary award of $2,130.00 a month as the wife held a doctoral degree in education, failed to make tremendous efforts to become self-sufficient during the pendency of the suit, and should be self-supporting in a real estate business in three to four years. Hadden v. Hadden, 283 Ga. 424, 659 S.E.2d 353 (2008).

Statute is inapplicable to award from corpus of husband's estate in lieu of periodic alimony payments. Daniel v. Daniel, 216 Ga. 567, 118 S.E.2d 369 (1961).

- Test as to applicability of statute is not whether periodic payments will continue in the same amount, but whether payments will continue at periodic intervals as opposed to an award from the corpus of the husband's estate. Foreman v. Foreman, 234 Ga. 646, 217 S.E.2d 257 (1975).

Escalation feature of agreement providing for possible increases is not award from husband's estate. The escalation feature of an agreement merely provides for possible increase in periodic payments, which is no more an award from the corpus of the husband's estate than the per month minimum award. Foreman v. Foreman, 234 Ga. 646, 217 S.E.2d 257 (1975).

Expenses of Litigation

When wife initiates action, subsection (d) is inapplicable.

- When the former wife and not the former husband seeks modification of an alimony award, attorney's fees are not allowable. Griffin v. Griffin, 226 Ga. 781, 177 S.E.2d 696 (1970).

Subsection (d) of statute does not permit award of attorney's fees to the former wife when it is she and not her former husband who seeks modification of the alimony award. Spivey v. Schneider, 234 Ga. 687, 217 S.E.2d 251 (1975).

- Subsection (d) allows award to wife of attorney's fees only when the husband has initiated action to modify a permanent alimony judgment, and not in an action seeking increased visitation rights. Gallant v. Gallant, 223 Ga. 397, 156 S.E.2d 61 (1967).

- Subsection (d) authorizes award of attorney's fees to the wife when the husband has filed an action to modify a permanent alimony judgment, but not in an action by the husband for a change of custody. Wilkins v. Wilkins, 234 Ga. 404, 216 S.E.2d 302 (1975).

Subsection (d) does not apply if child support payments are terminated contemporaneous with custody change. Hasty v. Duncan, 239 Ga. 797, 239 S.E.2d 7 (1977).

- Filing of a motion by a husband to set aside judgment of the trial court modifying an original divorce decree is not tantamount to filing an action under this statute. Herring v. Herring, 233 Ga. 484, 211 S.E.2d 893 (1975).

- Appeal by a husband from judgment for a wife upon her successful application for alimony modification does not constitute an "application . . . filed by the husband" within the meaning of the statute. Spivey v. Schneider, 234 Ga. 687, 217 S.E.2d 251 (1975).

- When the trial court has awarded attorney's fees to the former wife it is not an abuse of discretion to refuse to grant the wife an additional amount for purposes of preparing a record for appeal. Parrott v. Parrott, 224 Ga. 801, 164 S.E.2d 811 (1968).

Subsection (d) does not require payment of such expenses as condition precedent to maintaining of litigation by the defendant. Wayman v. Wayman, 222 Ga. 535, 150 S.E.2d 840 (1966).

For discussion of two-year limitation on filing modification petitions, see 1980 Op. Att'y Gen. No. U80-46.

RESEARCH REFERENCES

Editor's notes.

- Research references dealing with this subject matter have been placed with annotations for § 19-6-19, dealing with same subject, but by its terms confined to application in cases based on judgments rendered after July 1, 1977.