128 So. 801 | Ala. | 1930
The rule is now firmly established that, after a decree of divorce has been granted, and in it alimony payable monthly is provided, the court has the power and jurisdiction to modify the amount of the allowance at any time thereafter due to conditions which have changed since the entry of the decree. This is now held to be true whether the decree granting divorce and awarding permanent alimony expressly reserve such jurisdiction or not. Epps v. Epps,
The petition here shows that the decree granting a divorce and fixing alimony at a monthly allowance did in fact reserve jurisdiction, though, as we have said, that circumstance is not now material.
The petition to modify undertakes to give some nature of excuse for not prosecuting it within the time allowed by the rule for rehearings in equity. It then undertakes to show petitioner's inability to meet the payments. But it does not allege that the conditions upon which the relief is predicated did not exist at the time of the rendition of the final decree. True, the statements are made as of present conditions, but there is no allegation that those conditions are due to changes occurring since the decree. The decree was rendered December 31, 1929, in vacation, on a submission on December 19, 1929, in term time. The petition to modify was filed February 8, 1930. According to the interpretation which has been given sections 6636 and 6670, Code, and rules 81 and 78 (Chilton v. Gurganus,
The petition was therefore properly dismissed.
Writ of mandamus is denied.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.