At thе hearing upon the appellant-former wife’s petition for revision of the parties’ alimony judgment by an upward modification of the child-support obligation, the appellee-formеr husband, although personally served, did not appear personally or by counsel, and had filed no answer or other defensive pleadings. At the close of the plaintiffs evidence in a bench trial, the trial court entered a judgment for the defendant on August 17, 1983, from which the plaintiff appеals.
1. The appellant first enumerates as error the denial of her oral request for a jury trial in this equitable proceeding.
There is no common-lаw, constitutional, or statutory right to trial by jury in equity cases
in general. Cawthon v. Douglas County,
Therefore, although the trial judge in his discretion could have ordered a jury trial (OCGA § 9-ll-39(b) (Code Ann. § 81A-139)), a jury trial was not required absent a written request therefor.
2. The appellant next contends that a judgment against the appellee for some amount is demanded under thе evidence, because the appellee’s default admitted the allegations that he has had a substantial increase in his earnings and that he should be required to pay additional child support. This contention is without merit. The default provisions of OCGA § 9-11-55 (Code Ann. § 81A-155) have no application to divorce cases (OCGA § 19-5-8 (Code Ann. § 30-113);
Simpson v. Simpson,
3. The only evidence tendered by the appellant as to the allegеd change in income and financial status of the appellee was the testimony of the appellee’s second wife, who had subsequently divorced him in May of 1983. This testimony pertained to his alleged marital status, earnings, earning capacity, earning ability, and financial status as of the date of the divorce, including the year 1982. The trial judge refused to give any credit to this testimony, ruling that the witness had given no basis for her knowledge as to the purported facts to which she testified, and that this еvidence was at best simply hearsay or her assumptions.
The appellant argues that the trial judge erred in not objecting to the testimony when it was given, or examining the witness to determine the sourсe of her purported knowledge, citing the proposition that “[w]here a witness testifies to а fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowlеdge.”
Canal Ins. Co. v. Winge Bros., Inc.,
OCGA § 19-6-19 (Code Ann. § 30-220) provides that the judge (or jury) “may modify and revise thе previous judgment... if such a change in the income and financial status is satisfactorily proved...” (Emphases supрlied.) The appellant, as plaintiff, had the burden of satisfactorily proving such a change, and the trial judge, as the trier of fact, had the duty of determining the witness’ creditability and credibility. We cannоt say that the trial judge abused his discretion in determining that the testimony in question was not creditable or сredible, especially since the evidence was not reported, and we must rely upon the trial judge’s summary of the evidence in his judgment, as provided by OCGA § 5-6-41 (Code Ann. § 6-805).
4. Finally, the appellant argues thаt there was competent evidence upon which the trial court could have granted mоdification.
Aside from the testimony discredited by the trial judge (see Div. 3, infra), there was no evidence оf the appellee’s increased income and financial status. The evidence of thе needs of the children, their special problems, the earnings and financial status of the mother, and the previous earnings (at the time of the divorce) of the father — would not require a modifiсation. Moreover, even if the discredited testimony were to be credited we have held that “a change in the father’s income or financial status does not mandate a revision in child support; the statute merely permits such revision.”
Ivester v. Ivester,
From our review of the record, we find that the judgment denying modification of the earlier child-support award was authorized; therefore, we affirm that judgment.
Judgment affirmed.