*1 564 proper provision, constitutional and venue was
meaning was located.
County,
property
Habersham
where the secured
was denied his constitutional
Appellant’s
2.
contention that he
merit.
process
due
is also without
notice and a
property
It is the seizure of
without reasonable
See Fuentes v.
previous cases.
hearing that has been condemned
556) (1972). Here,
Shevin,
having
LE2d
petitioning possession for a writ of to submit “a statement of the facts Appellee’s petition signed under oath.” written was sworn to and Sikes, president jurat Tom of Containerhouse. The of the trial the statute. See necessary was affixed. This is all that is under (1) (3 Co., (1887); & Miller v. Loeb Smith Bros. SE Caraker, App. 9 Ga. SE All affirmed. the Justices concur.
Swift, Currie, & Mullins, Jr., McGhee A. L. Hiers, John P. MacNaughton, C. Hailey, David
Adams, Frankum, Ellard & Stephen Frankum, D.
40837. YOUNG v. YOUNG. Justice.
Smith, Sally and Gerald Young were divorced in Gwinnett County by a decree awarding permanent alimony and child Sally weekly amount of $50 weekly and $50 each of the children. March Sally petitioned the Superior Court of County, Fulton resided, where Gerald for a modification of alimony and support. child alleged the time since the award, divorce decree and Gerald’s ability pay income and had substantially increased and that an increase commensurate with Gerald’s enhanced ability pay was warranted.
Sally also filed a for temporary showing, March required by as is that an action for revision of a for days and that at least 90 had elapsed since her modification action. After a the court ordered doubling both support payments Sally child due Young and the *2 children. Gerald thereupon brought application an discretionary appeal to this court which was denied. He then filed a motion to set aside the in superior order grounds on the that the court lacked subject and authority to the (c) (Code in that OCGA 19-6-19 pertains only to decrees of July 1,1977. divorce rendered on or after This motion was denied and again sought Gerald to appeal to this court. It is upon the grant application of his for discretionary appeal the present case is before us. We reverse. now
Appeal in this original decide whether the case (1976) decree of divorce and award of alimony can be by temporary modified 1979, 466, L. p. Ga. 23§ (OCGA 30-220)).
The unusually complex history of modification actions has been discussed and detailed in prior issues, cases dealing with related but it is worthwhile to again review it once in order fully explicate the problem in present the case.
The 1955, in was enacted Ga. 1955, pp. 630-631. That law made reference to support wife, but not for a provided husband. The 1955 Act also upon the wife in showing change of a the husband’s financial status and income. The wife’s financial condition was not A material. amendment to seek a showing changes in the or income status of either spouse. 1977, pp. 1253-1254. Because this act did not state that it retroactively, by approved an act in legislature the applicable to make the 1977 Act judgments prior rendered to its effective date. Ga. L. 2204. In (246 (1978), McClain v. Ga. SE2d this court ruled that a an action in judgment which final prior entered to the 1977 Act had a vested judgment being subject to change modification because of a the income of the wife since the law in permit effect at the time of the Accord, a modification based on change. Id. at Jowers Jowers, (248 SE2d The rule of McClain was cases, Summerlin, followed in succeeding including Summerlin v. 523) (1981), Ga. 5 where this court the following addressed question: “Does a modification proceed action under the statute as it at the time at the time of
existed on the time of complaint, or at mod- applicable “the modification?” In answer it was said that ification statute is that statute effect divorce.” Id. at 6. time to add a again, Act was amended once 1979 the 1955 the terms paragraph
new does The 1979 amendment set out subsequent acts of and no is retroactive not state to make it so. attempted case present pertinent action legislative The final mod- alimony judgment when occurred November were enacted sections of the Official Code ification end, the decisions of this court. To reflect seq.) provides: 30-220 child or of a wife or providing permanent children, both, showing the wife upon petition filed either the husband or the husband.” and financial status of the income case were divorced supplied.)
(Emphasis (Code Ann. 30-220 1976 and there is no *3 modification. seq.) temporary for award of (a) (Code Ann. provides: 19-6-19 § § support of a permanent alimony for the July subject or after spouse showing filed spouse.” (Emphasis of either income and financial status “(c)” permits the court its supplied.) Paragraph of this section to order upon proper showing discretion and movant temporary modification. enumeration, only
In his contends that it was error superior fail to set aside its order award of temporary subject that the court lacked ground that jurisdiction. matter of this enumeration he submits made parties’ the modification act in effect at the time of the divorce modification, temporary provision temporary no nor is currently applicable modification authorized under (Code seq.). Ann. 30-220 et § § were agree We the act effect at the time these divorced was Ga. which did not the con- temporary disagree modification. we with superior jurisdiction. tention that court lacked (Code VI, IV, See Art. Sec. Par. Constitution 30-225.1). 2-3001). (Code Ann. See also OCGA 19-6-26 The real issue in this case is temporary whether a modification is authorized in the case of a divorced to enactment of the temporary provision. If authorized, may be aside, under a motion to set as patently void. See Indus., Wasden v. Rusco
Appellee contends that the effect at she permitted citing 483. With this assertion we agree. concludes, however, supra, and its progeny, including Summerlin, supra, are inapposite, the 1979 amendment providing for temporary procedural modification is a change not affecting a vested substantive right. appellee Thus would have us look to the law as it existed at the initially time she modification in 1982 and not at the law as it existed at the time the parties were divorced in assertion, 1976. With however, we cannot
Although it is true that McClain and its progeny are not direct authority for the question narrow here, at issue they interpret do part another of the same statute which gives rise to the controversy. These cases determining the similar but not identical issues involving retroactivity of laws pertaining persuasive are as authority that we ignore them at the peril of creating hopelessly confusing standard for litigants. future If it were to be determined that
was merely change, would also authorize husbands presently who have no right to seek permanent modification be- cause they divorced before to seek temporary modification based on a change in the finances, former wife’s al- though they could not be awarded a grant modifi- cation on that ground because of our decisions McClain and Sum- merlin. Such a decision would also conflict with the enactments (Code codified at OCGA 19-6-18 and 30-220 et seq.), discussed that women awarded July 1, 1977, before would be modification pursuant 30-220), *4 despite the language of that statute stating that it is apply cases where the judgment providing permanent for alimony was rendered 1,1977. after
Unlike exigencies recognized to exist when a marriage is disintegrating spouse may and one be at the mercy of the other without an awarding temporary supply means to contest and litigate the issues parties, between the no such compelling Gordon, circumstances obtain here. See Gordon v. public policy promoted independent alimony spouse to the without
awarding temporary to maintain pending litigation and respond means to that a policy from the separate and distinct necessities of life (or temporary modi- alimony may receiving paying) (or diminished) pay and the ability on an enhanced fication based obtaining a revision. probability reasonable 1955, pp. in effect For these reasons we find that decree and award divorced and a final at the time these entered, case. This law controls revision of an award of grant of the court alimony. Therefore the order disposition final below such revision alimony is reversed. action for revision of a J., concur, Hill, except C. All the reversed. Justices who dissents. Jr., Sacker, Sacker,
Clein & John E. Collar, Jr., Gordon, E. Alan B. Richard Justice, dissenting. Chief Hill, of the court. respectfully power
I dissent due to the inherent sued Mr. McGee for but Many years ago, Mrs. McGee for an allowance of jury was unable to Mrs. McGee moved support pending temporary alimony for her maintenance awarded it to her and her husband litigation. The trial court alimony only after a appealed, urging that our statutes authorized agreed This court with the husband’s jury. divorce decreed that, held the court interpretation statutes. a trial having jurisdiction grant the wife a divorce and alimony. by jury, power grant the trial had the (1) (1851). McGee, McGee v.
Here, modify the trial court has Therefore, view, power inherent my award. the trial court has the day congestion modification. Modern requires power. our courts therefore dissent.