Grizzard v. Grizzard, 24424
| Decision Date | 18 January 1968 |
| Docket Number | No. 24424,24424 |
| Citation | 224 Ga. 42,159 S.E.2d 400 |
| Parties | Ida Renfroe GRIZZARD v. James Carr GRIZZARD. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The ruling on the motion for summary judgment of the appellee (defendant) determined his right to summary judgment only on the grounds of his motion, and did not determine the sufficiency of the petition to state a cause of action.
2. A judgment for periodic payments of alimony or child support based on a contract between a husband and wife is subject to revision under Ga.L.1955, pp. 630, 631, as amended (Code Ann. § 30-220 et seq.), upon a change in the income and financial status of the husband. A stipulation in the contract, which was made the judgment of the court, that the wife released and discharged the husband from all claims she 'may have' for alimony will estop her from seeking an increase in alimony payments for herself, but will not prevent her from seeking an increase in support payments for the minor child.
Mose S. Hayes, Atlanta, for appellant.
Grant, Spears & Duckworth, William G. Grant, Atlanta, for appellee.
Mrs. Ida Renfroe Grizzard brought a petition against James Carr Grizzard seeking to modify a judgment for alimony for herself and support for the minor child of the parties. The defendant made a motion for summary judgment on the grounds that the parties entered into a valid and binding contract settling and adjusting all property rights between them, including the claims of the plaintiff for her support and maintenance, and that this contract is not subject to revision, modification, or change under Ga.L.1955, pp. 630, 631, as amended (Code Ann. § 30-220); and that the sum of $150 per month being paid for the support of the minor child is more than adequate for his support and maintenance. In the affidavit attached to the motion the defendant averred that the settlement agreement was a valid and binding agreement, and that he has complied with all the provisions of the agreement. In the affidavit of the plaintiff, in response to the motion for summary judgment, she averred that the contract between the parties was made the judgment of the court, and such a judgment is subject to modification; and that the amount of support in the judgment is not sufficient for the support of the child. The motion for summary judgment was granted, and the appeal is from this judgment.
1. The motion for summary judgment, the affidavit in support thereof, and the affidavit in opposition to the motion, were all filed prior to the effective date of the Civil Practice Act, and the rulings here made are under the law as it existed prior to the effective date of that Act. See Ga.L.1966, pp. 609, 660; Ga.L.1967, pp. 226, 238 (Code Ann. § 81A-156) for the provisions of the Civil Practice Act as to the grant of summary judgment.
The appellee contends that he was entitled to summary judgment because the petition did not sufficiently allege a change in his financial condition, and the affidavit of the appellant made no statement as to the appellee's financial condition. The petition alleged that he was earning approximately $29,564.98 per year at the time of the alimony judgment, and that the plaintiff 'verily believes' that his income is now in excess of $100,000.
Where a plaintiff makes a motion for summary judgment, he is not entitled to such judgment unless his petition and the depositions, admissions, and affidavits show that he is entitled to prevail. Wells v. Wells, 216 Ga. 384(1), 116 S.E.2d 586. A ruling on motion for summary judgment of the defendant is a determination only of the right of the defendant to a judgment in his favor on the grounds of his motion, and does not determine the sufficiency of the petition to state a cause of action. Sanders v. Alpha Gamma Alumni Chapter, 107 Ga.App. 403, 405, 130 S.E.2d 255. On review this court will consider only the question of whether the appellee was entitled to a summary judgment on the grounds made by his motion.
2. The issue made by the motion for summary judgment is whether the appellant may seek a revision of an award of periodic payments of alimony for herself and support for the minor child of the parties, in a final judgment and decree in a divorce and alimony case, which judgment and decree adopted an agreement of the parties wherein the appellant expressly released the appellee from any and all claims for alimony.
The contract which was made the judgment of the court provided that the appellee should pay $2,000 on the...
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