Kitchin v. Kitchin, 22209

• Decision Date: 07 November 1963
• Docket Number: No. 22209,22209
• Parties: Houston Wyke KITCHIN v. Ruth Horn KITCHIN.
• Court: Georgia Supreme Court

Page 880

133 S.E.2d 880

219 Ga. 417

Houston Wyke KITCHIN v. Ruth Horn KITCHIN.

No. 22209.

Supreme Court of Georgia.

Nov. 7, 1963.

Syllabus by the Court

1. Where the trial judge has exercised the discretion vested in him by law and there is some evidence to support the verdict, the judgment overruling the motion for new trial based on the general grounds is not error.

2. In the consideration of a petition for revision of a judgment providing permanent alimony for the support of a wife and child the only issue before the court is whether there has been a substantial change in the income and financial status of the husband so as to warrant either a downward or upward revision and modification of the permanent alimony judgment. Evidence of the husband's income and financial status up to the time of trial is admissible and the trial court's overruling of the defendant's motion for new trial on the ground that the issue as formed by the pleadings related only to the husband's income and financial status up to the time of filing of the petition for modification, thus excluding evidence of income and financial status subsequent thereto, was not error.

3. The trial court did not err in overruling the motion for new trial based on the ground that evidence of the husband's gross income was inadmissible in a suit for the revision of a judgment for permanent alimony.

William A. Hamilton, Tucker, Claude E. Hambrick, Atlanta, for plaintiff in error.

Harry P. Hall, Jr., Westmoreland, Hall & Penecost, Atlanta, for defendant in error.

ALMAND, Justice.

On April 16, 1961, Ruth Horn Kitchin, defendant in error (plaintiff in the trial court and so designated hereinafter), filed her petition against Houston Wyke Kitchin, plaintiff in error (defendant in the trial court and so designated hereinafter), for modification of a prior award of alimony for herself and the parties' minor child. The petition alleged a substantial increase in the income and financial status of the defendant since the granting of the final divorce and alimony award on June 13, 1958, which would authorize an upward revision of the permanent alimony award.

The case was tried before a juty on May 14, 1963, and the verdict of the jury, which was made the judgment of the court, increased the amount of alimony for the minor child from $150 per month to $250 per month, and for the plaintiff from $150 per month to $215 per month. The defendant subsequently filed a motion for new trial on three general grounds which he later amended by adding five additional grounds. The trial court overruled the defendant's original and amended motion for new trial and the defendant assigns error on that ruling.

At trial there were only two witnesses, the plaintiff and the defendant. The plaintiff did not testify that there had been an increase in the income and financial status of the defendant but relied upon the cross examination of the defendant and the introduction into evidence of the defendant's books, records and income tax returns. It was undisputed that at the time of the rendition of the original alimony decree of June 13, 1958, the defendant was engaged in the practice of medicine with a Dr. Beck at an annual salary of $10,800. The defendant testified that he went into practice for himself on August 1, 1958, and that his monthly income for the remainder of that year was less than it had been for the preceding seven months. He further testified that his annual income for 1959, 1960, and that part of 1961 up to April 26 (date of the filing of the petition) was less than it had been prior to the rendition of the original alimony award.

Defendant's income tax returns were introduced in evidence by the plaintiff and revealed the following: for 1958--gross income of $16,443.98, adjusted gross income of $10,460.77, and taxable income of $6,832.89; for 1959--gross income of $27,759.12, adjusted gross income of $14,371.74, and taxable income of $9,827.15; for 1960--gross income of $29,429.52, adjusted gross income of $13,437.22, and taxable income of $8,436.44. Over the objection of the defendant, the court allowed the admission into evidence of the defendant's testimony on cross examination and certain of his financial records both of which revealed that the defendant had gross income from his practice of $29,436.48 for 1961 and $29,260.53 for 1962.

1. In the consideration of a petition for revision of a judgment providing permanent alimony for the support of a wife and child the only issue before the court is whether there has been a substantial change in the income and financial status of the husband so as to warrant either a downward or upward revision and modification of the permanent alimony judgment. Ga.L.1955, pp. 630, 631 (Code Ann. § 30-221). This court has held that the legislature did not intend to require a showing of a change in both the income and financial status of the husband. 'Clearly, what the legislature did intend was that the original judgment could be revised upon a change in the husband's ability to pay, and there might be a change in his ability to pay by reason of a change in his financial status without any actual change in his income.' Perry v. Perry, 213 Ga. 847, 852, 102 S.E.2d 534, 538. In the instant case the jury found that there had been a change in the husband's ability to pay alimony for the support of the wife and child.

The defendant assigns error on the trial court's overruling of his original motion for new trial based on the general grounds that the verdict is 'contrary to evidence and without evidence to support it,' 'decidedly and strongly against the weight of evidence,' and ...