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Lawskills.com Georgia Caselaw
ZUBER v. ZUBER.
20553.
MOBLEY, Justice.
Alimony, etc. Barrow Superior Court. Before Judge Clinkscales. May 1, 1959.
The exception in this case is to the judgment of the Superior Court of Barrow County sustaining the general demurrer filed by the defendant, Mrs. Darline Wilson Zuber, to a petition brought by John D. Zuber, asking the court to declare invalid a judgment of that court of December 5, 1953, awarding permanent alimony to Mrs. Zuber in the sum of $65 per month, plus payments on a refrigerator and $100 per month for support of the son of the parties, and also asking to declare invalid a judgment of January 30, 1954, modifying the judgment of December 5, 1953, by reducing the amount for the son from $100 to $35 per month. Held:
27A C. J. S. 1024, 231. This matter having been tried before the court without a jury, and the judge having, at the time the divorce was granted and custody awarded, reserved for future determination the question of alimony and support for the wife and child, he acted within his authority in entering the judgment of December 5, 1953, awarding alimony and properly sustained the general demurrer to this portion of the petition.
2. The petition further alleged that, on January 30, 1954, the trial court entered judgment modifying the judgment of December 5, 1953, by reducing the payments for support of the son from $100 to $35 per month, and prayed that this judgment be declared invalid. Prior to the enactment of the act approved March 9, 1955, as amended by the act approved February 26, 1957 (Ga. L. 1955, pp. 630-632; Ga. L. 1957, pp. 94-96; Code, Ann., 30-220--30-225), and at the time the judgment of January 30, 1954, was entered, there could be no modification of an award of permanent alimony after the final divorce decree had been rendered, except in cases in which "(1) there was no jury trial as to permanent alimony and the question of permanent alimony was disposed of by agreement of the parties incorporated in the decree and made the judgment of the court; and (2) the power to change or modify the decree was reserved to the court by consent, of the parties." Fricks v. Fricks, 215 Ga. 137, 138 (109 S. E. 2d 596). See also Hardy v. Pennington, 187 Ga. 523 (1 S. E. 2d 667); Banda v. Banda, 192 Ga. 5, 6 (1) (14 S. E. 2d 479); Breen v. Breen, 208 Ga. 767 (1) (69 S. E. 2d 572). Since it does not appear that the trial court retained jurisdiction under the conditions set forth above, the court was without jurisdiction to modify the award of alimony made December 5, 1953. "A judgment rendered by a court without jurisdiction is a mere nullity, and may be so held wherever and whenever and in whatever way it is sought to be used as a valid judgment." Towns v. Springer, 9 Ga. 130 (1). Accordingly, the court below erred in sustaining the general demurrer to that portion of the petition dealing with the judgment of January 30, 1954, which modified the original award of alimony.
C. O. Baker, contra.
Marvin D. Pierce, Jr., for plaintiff in error.
SUBMITTED JULY 13, 1959 -- DECIDED SEPTEMBER 11, 1959.
Saturday May 23 01:01 EDT


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