Undеr the Uniform Reciprocal Enforcement of Support Act (URESA), Nancy L. O'Neill sought to enforce the periodic alimony provisions of a 1977 Georgia divorce judgment which approved an agreement in that respect between her and her then husband, William W. O'Neill. By thеir settlement contract they expressly reserved any right which either party might have under § 30-220 of the Georgia Code or similar laws of any other state to modify alimony.
Mrs. O'Neill commenced these URESA proceedings in South Carolina, where she presently resides, and the proper documents were duly forwarded to Alabama, the responding state, where Mr. O'Neill now lives. He filed an answer and counterclaim in the district court, juvenile division, where the case was pending. His pleadings stated that he was not paying alimony to his former wife because she is continuously and openly living with her boyfriend in a meretricious relationship and Mr. O'Neill asked to be relieved from his alimony obligations on that account. Mrs. O'Neill personally filed in the district court her handwritten answer and her "counter counter claim" to his counterсlaim and she denied such averments. Since the case was at issue, it was set for trial by the court and more than thirty days' notice of the triаl date was given to her, but she did not appear for trial. No motion for a continuance or for a delay in the submission of the cаse until the ex-wife's evidence could be procured by deposition, or otherwise, was made either *263 by Mrs. O'Neill or on her behalf at any time. No reason appears in the record as to why she was absent at the trial. Mr. O'Neill's evidence was heard orally by the trial court and the case was submitted for a final judgment.
The trial court's judgment was styled "IN THE CIRCUIT COURT OF BARBOUR COUNTY," but was signed as follows:
[s] Wm. H. Robertson WILLIAM H. ROBERTSON DISTRICT JUDGE BARBOUR COUNTY, ALABAMA
That judgment expressly found that the court had jurisdiсtion over the parties, that Mrs. O'Neill is dwelling together continuously and openly in a meretricious relationship with a person of the opposite sex, and that, accordingly, Mr. O'Neill should be relieved from the obligation of paying future periodic alimony pursuant to the laws of both Georgia and Alabama. No posttrial motion was filed by Mrs. O'Neill, who immediately appealed.
She first contends that Judge Rоbertson, as a district judge, had no authority to enter the final judgment in the circuit court.
We deem the caption on the final judgment to be surрlusage when it stated "circuit" court. The case was pending in the juvenile division of the district court where all of the pleadings were аpparently filed; it was tried before the district judge; it had never been transferred to the circuit court; and it was signed and rendered by the district judge. It was a judgment of the juvenile court regardless of the erroneous court caption.
Even if the judgment be considered as a circuit court judgment it would have to be upheld. No objection was made in the trial court at any time as to the authority of the trial judge. Thus, аll such objections in that connection were waived. We are required to conclusively presume that his selection or appointment was in all respects regular. The lack of authority of the judge to preside over the trial and to render the judgment cаnnot be raised for the first time upon this appeal. Roberts v.State,
It is next suggested that the juvenile court was without jurisdiction over the subject matter, i.e. that it had no authority tо entertain a counterclaim so as to terminate periodic alimony on the ground of cohabitation. That position would nоrmally be true, but URESA itself discusses the duty of support in many sections. §§
Accordingly, as to the merits of the case, we look to the law and to the evidence in order to asсertain if there was a duty upon Mr. O'Neill to provide future periodic alimony to his ex-wife under the presented circumstances. The аverments of the counterclaim tracked the Georgia cohabitation statute, which permits the modification of periodiс payments of permanent alimony under the circumstances so averred. § 30-220, Ga. Code Ann. Under Alabama's constitutional amendment number 390 and pursuant to §
Mr. O'Neill's counterclaim was germane to the question of the duty of support which was raised by the proceеdings instituted by Mrs. O'Neill under URESA. The district court properly decided that issue.
Very conscientious counsel for Mrs. O'Neill on this appeal have filеd an excellent brief on her behalf. We have dutifully reviewed the remainder of the issues raised, as to which we find no merit. We affirm.
Legitimate and hard questions and issues were raised in this appeal by Mrs. O'Neill's attorneys. She has requested that an attorneys' fee be awarded. We find no authority for the granting of such request. Section
The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of §
AFFIRMED.
All the Judges concur.