Gilbert v. Gilbert

• Decision Date: 13 May 1921
• Docket Number: 2243.
• Citation: Gilbert v. Gilbert, 151 Ga. 520, 107 S.E. 490 (Ga. 1921)
• Parties: GILBERT v. GILBERT.
• Court: Georgia Supreme Court

107 S.E. 490

151 Ga. 520

GILBERT v. GILBERT.

No. 2243.

Supreme Court of Georgia

May 13, 1921

Syllabus by the Court.

In proceedings for divorce and permanent alimony, after a final verdict a decree has been rendered, dissolving the marital relations between the parties, and awarding alimony for the wife and stated sums for the support of the children, the decree thus rendered is final in its nature, and passes beyond the discretionary control of the trial judge, and he has afterwards no authority either to abrogate it or modify its terms.

The amount of alimony and stated sums for the support of the minor children, under a decree rendered upon the final verdict of divorce, was res adjudicata; and the court did not err in dismissing the petition seeking an additional allowance.

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Suit by Julia Gilbert against Thomas Gilbert for divorce.Application, after decree of divorce granted plaintiff, for increase of alimony, denied, and plaintiff brings error.Affirmed.

B. B Renitz and H. F. Strohecker, both of Macon, for plaintiff in error.

Robt.G. Plunkett, of Macon, for defendant in error.

BECK P.J.(after stating the facts as above).

Some three years prior to the filing of the present suit the marriage relations between the plaintiff and the defendant had been dissolved by a verdict and decree of divorce then rendered.The suit upon which the verdict and decree was rendered, dissolving the marital relations between the plaintiff and the defendant, and awarding stated sums as permanent alimony for the wife and for the support and maintenance of the children, was between the same parties and involved the same subject-matters as are here involved.And that judgment and decree was final in its nature, and passed beyond the control of the court for purposes of change or modification.In the case of Wilkins v. Wilkins,146 Ga. 382, 91 S.E. 415, it was said:

"After the termination of a suit for permanent alimony and the rendition of a final decree therein, not excepted to the decree allowing alimony passes beyond the discretionary control of the trial judge; and he has then no authority either to abrogate it or to modify its terms, unless the power to do so is reserved in the decree.The power to revise and review allowances of alimony, which is vested in the judges of the superior courts by Civil Code, § 2978, applies exclusively to the revision and review of allowances of temporary alimony.Coffee v. Coffee, 101 Ga. 787, 28 S.E 977."

In the case first cited it was held that a decree like the one in the present case, allowing alimony, passed beyond the discretion and control of the circuit judge, and that he had no authority afterwards to either abrogate it or modify its terms, unless the power to do so was reserved in the decree.In neither the Coffee Case nor the Wilkins Case, as will be seen from the reports of them, was the power to abrogate or modify the terms of the decree reserved; and the decisions in those cases amount simply to a ruling that the decrees there under consideration could not be changed or...