McGuire v. McGuire

• Decision Date: 09 March 1972
• Docket Number: No. 27018,27018
• Citation: 187 S.E.2d 859,228 Ga. 782
• Parties: John P. McGUIRE v. Ruth C. McGUIRE.
• Court: Georgia Supreme Court

Page 859

187 S.E.2d 859

228 Ga. 782

John P. McGUIRE v.Ruth C. McGUIRE.

No. 27018.

Supreme Court of Georgia.

March 9, 1972.

J. S. Hutto & Associates, Eugene Highsmith, Brunswick, for appellant.

Reid W. Harris, Marvin L. Pipkin, Brunswick, for appellee.

Syllabus Opinion by the Court

ALMAND, Chief Justice.

The controlling question to be answered here is: can a Georgia court modify a final decree of a court of a foreign state which awards permanent alimony for support of minor children?

The undisputed facts as appear from the pleadings are: Ruth C. McGuire, the appellee, filed her complaint against John P. McGuire, the appellant, in Glynn Superior Court.She alleged that both parties were residents of Georgia, but that while they were residents of Florida a final divorce decree was granted to the parties by a named circuit court in the County of Clay, State of Florida, on October 20, 1960.

Based upon an agreement of the parties, the appellant was ordered to pay to the appellee the sum of $100 per month for the support of their two minor children, said sum 'to be paid until such time as such child or children reach their majority or are married, or become self supporting whichever occurs first.'The decree contained the following provision: 'That this Court retains jurisdiction over the parties hereto for the purpose of entering such further orders and decrees as may be necessary from time to time concerning the care, custody and control and support of the two minor children of the parties hereto.'

In her complaint, appellee alleged that since the grant of the decree 'necessary costs of support of said children have increased tremendously as a result of medical attention, educational requirements, and general increase in cost of living since 1960,' and that appellant was 'employed by the United States Government as an Agent for the Federal Bureau of Investigation and has since 1960 advanced in pay levels and enjoyed numerous Federal wage increases, resulting in a substantial increase of his financial condition over this period with a present annual income of approximately $16,000.00 to $18,000.00.'Appellee asserted that the court had jurisdiction by reason of Georgia Laws 1955, page 630, relating to the modification of alimony awards for child support in divorce cases.

The prayers were that the Florida divorce and support decree be modified so as to require the appellant to pay the sum of $300 instead of $100 per month for the support of the children.

In his response, the appellant moved to dismiss the complaint on the grounds (a) that the court was without jurisdiction of the subject matter; (b) that the complaint failed to state a claim upon which relief could be granted, and (c) that the matter involved was res judicata.

This motion to dismiss was overruled and the appeal (certified for review) from this order brings the case here.

The Florida decree is sought to be modified by the appellee under the provisions of Georgia Laws 1955, page 630(Code Ann. §§ 30-220,30-223), as amended byGeorgia Laws 1969, page 98(Code Ann. § 30-225.1(1)).

The original 1955 Act provided: 'The judgment of a court providing permanent alimony for the support of a wife or child or children, or both, shall be subject to revision upon petition filed by either the husband or the wife showing a change in the income and financial status of the husband.Such petition shall be filed and returnable under the same rules of procedure applicable to divorce proceedings.Such petition shall be filed in the same county in which the original judgment was granted.'The provision that the petition for modification'be filed in the same county in which the original judgment was granted,' was subsequently held unconstitutional in that it violated the venue provision of the 1945Constitution(Code Ann. § 2-4906,Const. art. VI, § XIV, par. 6).Bugden v. Bugden, 224 Ga. 517, 162 S.E.2d 719.

Subsequent to the Bugden decision the General Assembly amended the 1955 Act as follows: '(1) So long as a husband against whom is rendered a permanent alimony judgment remains or is domiciled in this State, the exclusive procedure for the modification of such judgment shall be by a proceeding instituted for such purposes in the court of this State which granted the original judgment.(2) No judgment of any other State or foreign jurisdiction by which it is attempted to modify a Georgia judgment awarding permanent alimony for the support of a wife, or child or children, or both, will be recognized or enforced by the courts of this State.(3) This law . . . shall apply to all judgments for permanent alimony for the support of a wife, or child or children, or both, rendered subsequent to March 9, 1955.'The provision as to venue in Section 1 was later held unconstitutional for the same reason as in the Bugdencase, supra.Duncan, nee Medlin v. Medlin, 226 Ga. 118, 172 S.E.2d 672.

The 1969amendment to the 1955 Act apparently was motivated by the decision of the Court of Appeals in the case of Connell v. Connell, 119 Ga.App. 485, 167 S.E.2d 686, wherein the wife had obtained a final divorce and support decree in a Georgia court.After moving to South Carolina, she filed a petition for a modification of the Georgia decree as to child support, and the husband was served and appeared at the hearing.After the court granted a modification, the wife filed a suit against the husband in a Georgia court to enforce the South Carolina decree, and the Court of Appeals held that, under the full faith and credit clause of the Federal Constitution, the South Carolina decree was of force in Georgia.

The decision of the Court of Appeals was handed down on February 26, 1969, and the 1969amendment to the 1955 Act was approved on March 17, 1969.

Under repeated rulings of this Court prior to the 1955 Act, a court of Georgia could not revise or modify a final decree awarding permanent alimony, unless (a) there was no jury trial, (b)the parties had by agreement disposed of the question of alimony, and (c) the power to change or modify the decree was reserved to the court by consent of the parties.Fricks v. Fricks, 215 Ga. 137(1), 109 S.E.2d 596;Crook v. Crook, 211 Ga. 406, 86 S.E.2d 223;Gilbert v. Gilbert, 151 Ga. 520, 107 S.E. 490.

Code§ 102-102(9) provides that the courts in all interpretations of statutes shall look diligently for the intention of the General Assembly, 'keeping in view at all times, the old law, the evil and the remedy.'As this Court said in Swan v. The State of Georgia, 29 Ga. 616, page 621: To ascertain the intention of the Legislature, after examining the...