Banda v. Banda, 14 S.E.2d 479

Banda v. Banda

14 S.E.2d 479 | Ga. | 1941

A petition for injunction against bringing garnishments to subject the petitioner's salary to a balance of amount due for alimony under a previous decree in favor of his former wife was subject to general demurrer.

No. 13566. APRIL 15, 1941. This was a petition by a former husband to enjoin his former wife from bringing garnishment proceedings to subject his salary to a balance due for alimony under a previous decree in her favor. It was alleged that, since the decree on October 7, 1938, allowing her $60 a month for her support and $40 a month for their minor child, the husband had faithfully performed the decree until September 1, 1939; but that since that time he had paid $75 a month and was unable to pay more, because he had remarried, a child had been born of the second marriage necessitating doctor and hospital bills of $130, his health had become impaired, necessitating $115 doctor bills for himself, and he had $240 additional fixed obligations; that the former wife had caused a garnishment summons to issue for $200 back alimony, and she threatened to serve continuous garnishments on the employer, and petitioner would be dismissed from his employment, causing irreparable injury, unless the garnishments were discontinued; and that petitioner had paid the *6 alimony to the full extent of his ability, and "is willing to continue said payments to the extent of his ability." The defendant demurred generally on the ground that the petition stated no cause of action; and that the court was without equitable or other power to go behind the final decree for permanent alimony, or "to deny defendant the use of any of the legal processes provided by law to enforce said final judgment and decree." At interlocutory hearing the judge heard testimony in support of the petition, but dismissed it on the general demurrer. 1. While "the order allowing [temporary] alimony shall be subject to revision by the [trial] court at any time" (Code, § 30-204; Coffee v. Coffee, 101 Ga. 787 (28 S.E. 977); Wester v. Martin, 115 Ga. 776, 42 S.E. 81), the rule is different as to decrees for permanent alimony. After a decree for permanent alimony has become absolute, there is no authority given under the law by which a trial court is empowered to abrogate or modify the obligation imposed by the decree, unless such a right has been reserved by consent of the parties in the final decree itself. Hardy v. Pennington, 187 Ga. 523,525 (1 S.E.2d 667), and cit.; Gilbert v. Gilbert,151 Ga. 520 (107 S.E. 490); Wilkins v. Wilkins, 146 Ga. 382 (91 S.E. 415); Deaderick v. Deaderick, 182 Ga. 96 (3, d) (185 S.E. 89). Accordingly, whatever might be the change in the financial condition or the ability to pay of the former husband, that is, however much his earning capacity or resources might be enhanced or diminished, the obligation established by the final decree, as above indicated, remains absolutely fixed. The fact that the judge is empowered to take into consideration his change of condition, in determining whether or not he should be adjudged in contempt in such a summary proceeding instituted by the former wife, does not have the effect of empowering the judge to abrogate or modify the liability as fixed by the decree. SeeReese v. Reese, 189 Ga. 314 (5 S.E.2d 777), and cit.;Snider v. Snider, 190 Ga. 381, 386 (9 S.E.2d 654);Newsome v. Newsome, 155 Ga. 412 (117 S.E. 90); Potter v.Potter, 145 Ga. 60 (88 S.E. 546); Long v. Black,177 Ga. 365 (170 S.E. 233).

2. "One to whom alimony has been awarded may avail herself of any proper legal remedy for the enforcement of her judgment, and to that end may cause successive garnishments to be served on *7 the employer of the defendant, to subject his salary payable monthly, which is subject to garnishment. The probability of the defendant's loss of employment because of the annoyance to his employer occasioned by the service of summons of garnishment furnishes no ground for enjoining the garnishment proceedings."Raines v. Raines, 138 Ga. 790 (6), 793 (76 S.E. 51).

3. Under the preceding holdings, the court did not err in dismissing the petition on general demurrer.

Judgment affirmed. All the Justices concur.