Opinion
21718.
SUBMITTED JULY 9, 1962.
DECIDED SEPTEMBER 6, 1962.
Petition to modify alimony. Richmond Superior Court. Before Judge Hardin.
Jay M. Sawilowsky, for plaintiff in error.
Franklin H. Pierce, contra.
Where, as in this case, the petition affirmatively discloses that it alleges no matter of which the court in which it is filed has jurisdiction, the petition should be stricken on general demurrer.
SUBMITTED JULY 9, 1962 — DECIDED SEPTEMBER 6, 1962.
A decree of divorce was entered in Richmond Superior Court between Dora S. Davis and Glyndon G. Davis on October 4, 1960, under case number 2703-B. The decree finally disposed of the divorce case, and required the husband to pay $256 per month permanent alimony for the support of three minor children of the marriage, Glenda, age 9, Theresia Ann, age 7, and Glyndon, Jr., age 3. The alimony was fixed at an amount previously agreed upon by the parties.
On January 5, 1962, Glyndon Davis filed a pleading in the form of an incomplete petition. It was alleged that under the prior divorce decree Glyndon Davis was to pay $256 per month for the support and maintenance of the three children, which sum he duly pays; that Glyndon Davis was an Army Specialist E/5 whose base pay is $240 per month, and in addition he receives $5.40 per month for uniforms and clothing and $96.90 for quarters and subsistence, giving a total of $342.30; that by virtue of a special assignment he also receives $79.67 per month for meals, but this is only temporary; that his former wife has moved, and he must travel 4,000 miles round trip to visit his children; that he has remarried and his present wife is employed.
Glyndon Davis further averred that it was impossible for him to continue payments and he is seeking a modification and revision of the prior judgment under Code Ann. § 30-220; that his former wife is capable of working and has worked; that the $256 payment prohibits him from establishing a new home with his present wife.
Glyndon Davis prayed for an order modifying "to some extent" the amount he is required to pay and that an order be passed allowing "this proceedings [sic] to be served by publication as provided by law." The petition was filed under the docket number of the divorce case, No. 2703-B.
An amendment to the petition alleged: that conditions and circumstances had changed since the original decree; that Glyndon Davis is entitled to a modification in that his pay status has changed and he earns $76 per month less than he did when the agreement was signed; that his present wife is about to have a child and is unable to work; that he has no livelihood except as a soldier. The amendment was given the number of the original divorce case. The petition did not, as originally drafted nor as amended, pray process, and none issued.
To the original petition Dora Davis demurred on the grounds, among others, that: the petition failed to set forth a cause of action; the petition failed to allege what wages Glyndon Davis' wife receives at her job; the petition failed to set forth what rank Glyndon Davis had with the Army, what his base pay was, and what his total income was at the time of the divorce decree; the petition was filed and docketed under the same number as the divorce decree and further it failed to comply with the provisions of Code Ann. § 30-222 which states that the petition shall be filed and returnable under the same rules of procedure applicable to divorce proceedings.
To the amended petition Dora Davis renewed her original demurrers and urged, in addition, new demurrers on grounds: that the petition showed on its face that the court had no jurisdiction to grant the relief demanded; that the petition failed to set forth how and in what manner Glyndon Davis did not earn as much as he did at the time of the divorce and how and in what manner his pay is now $76 less than at the time of the divorce, and further what his total income was at the time of the divorce; that the allegations as to Glyndon Davis' remarriage, the pregnancy of his present wife and her inability to work are surplusage, irrelevant and prejudicial.
The orders of the trial judge requiring Dora Davis to appear and defend the case and the order for service by publication were both entered on the docket under the number of the original divorce case, 2703-B, and the order of the trial judge in overruling the demurrer referred to the case in which it was entered by no other designation except the number 2703-B.
To the judgment overruling the demurrers, Dora S. Davis excepted and brought the case here for review.
1. The sufficiency of the petition to withstand the general demurrer depends upon whether it disclosed that the trial judge had jurisdiction to grant the relief prayed, and whether the petition set forth cause to revise and reform the decree fixing the permanent alimony to be paid by the petitioner.
2. This court takes judicial cognizance of the terms of the superior courts of this State, as fixed by the public laws, and knows that a term of Richmond Superior Court does not extend from November 9, 1960, to January 5, 1962, a period of more than one year. Dover v. Dover, 205 Ga. 241 (2) ( 53 S.E.2d 492).
3. Where, as in this case, the term of the superior court during which a final decree is entered in a divorce case adjudicating the issue as to the amount of permanent alimony to be paid by the husband expires, the judge of the superior court loses jurisdiction of the case. Carswell v. Shannon, 209 Ga. 596 (2) ( 74 S.E.2d 850); Perry v. Perry, 212 Ga. 668, 670 ( 95 S.E.2d 2); Amos v. Amos, 212 Ga. 670, 671 ( 95 S.E.2d 5). After the expiration of the term, if either of the parties, former husband and wife, desires a revision of the decree as to the payment of permanent alimony, where the same stands unreversed, the moving party must institute a new action, separate from the divorce, under the provisions of the acts of 1955 (Ga. L. 1955, pp. 630, 631) embodied in Code Ann. § 30-220.
Where a new action of the nature referred to is brought, it must conform to, and meet the requirements of the act. In the case of Perry v. Perry, 213 Ga. 847, 849 ( 102 S.E.2d 534), this court held: "An act of the General Assembly of 1955 (Ga. L. 1955, p. 630) authorized the revision of a judgment granting permanent alimony upon a petition filed by the father or mother showing a change in the income and financial status of the father and provided that `such petition shall be filed and returnable under the same rules of procedure applicable to divorce proceedings. Such petition shall be filed in the same county in which the original judgment was granted.'"
The law makes the prayer for process necessary in a petition for divorce. It follows that the petition in an action brought under the acts of 1955 to alter and revise a final decree in a divorce case fixing the amount of permanent alimony the husband is required to pay must pray for process and not be filed as a mere pleading or motion in the original divorce suit.
The pleading in the form of a petition, filed in the present case, was filed under the docket number of the divorce case between the parties disposed of at a prior term of the court, was amended under that number, and in three orders entered by the judge referred to by the same number. It did not pray process. So, it is obvious that the petition did not institute a new and distinct case separate from the divorce case, and really amounted to no more than a motion made in the divorce case disposed of at a previous term of the court. It is equally as apparent that it did not meet the requirements that it be filed and returned under the same rules of procedure as are applicable in divorce cases. In these circumstances, the petition did not confer jurisdiction in the trial judge to grant the prayer that the divorce decree be altered or revised.
Judgment reversed. All the Justices concur.