Crosby v. Crosby

Supreme Court of Georgia

Crosby v. Crosby

292 S.E.2d 814, 249 Ga. 569, 1982 Ga. LEXIS 875

CourtSupreme Court of Georgia

DecidedJune 22, 1982

Docket38660

StatusPublished

Cited by7 cases

This text of 292 S.E.2d 814 (Crosby v. Crosby) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crosby v. Crosby, 292 S.E.2d 814, 249 Ga. 569, 1982 Ga. LEXIS 875 (Ga. 1982).

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Opinions

Weltner, Justice.

Under the separation agreement incorporated into the final judgment of divorce, custody of the two minor children was awarded to the father, who was held responsible for the children’s medical and dental expenses. The mother was not obligated to pay any child support. The father thereafter filed a petition for a modification seeking child support from the mother, alleging that his income had decreased since the time of the divorce decree. The trial court, without stating the basis therefor, dismissed the petition on motion of the mother, and we granted the father’s application for discretionary appeal.

The sole enumeration of error contends that the trial court erred in holding that the original decree was not subject to modification under Code Ann. § 30-222 (Ga. L. 1955, pp. 630, 631, as amended), which provides: “Such an application [for revision of an alimony award] can be filed only where a party has been ordered by the. fined [570]*570judgment in an alimony, or divorce and alimony, suit to pay permanent alimony in weekly, monthly, annual, or similar periodic payments, and not where the former spouse of such party, or child or children, or both, have been given an award from the corpus of the party’s estate in lieu of such periodic payment.” No other issue is raised in the briefs filed by the parties.

Decided June 22, 1982. Herschel B. Herrington, for appellant. Paul W. Calhoun, Jr., for appellee.

In Livsey v. Livsey, 229 Ga. 368, 369 (191 SE2d 859) (1972), we held that the right to petition for modification of child support “... is a right which belongs to the child or children involved which may be exercised at the election of the mother or other person having legal custody of the children under the terms of the divorce decree. Since this right belongs to the children and not to the mother, she cannot waive it. [Cits.] It follows that even if the agreement relied upon by the appellant can be said by its terms to have waived the right to seek a revision of the child support payments awarded under the divorce decree, it was not effective for that purpose and the trial court properly overruled the motion to dismiss.” See also Lanning v. Mignon, 233 Ga. 665 (212 SE2d 834) (1975); Mitchell v. Mitchell, 235 Ga. 101 (218 SE2d 747) (1975); Quarles v. Quarles, 237 Ga. 703 (229 SE2d 452) (1976). Accordingly, the decree is properly subject to a petition for modification.

Judgment reversed and remanded.

All the Justices concur, except Hill, P. J., who concurs specially.

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Weltner, Justice.

Under the separation agreement incorporated into the final judgment of divorce, custody of the two minor children was awarded to the father, who was held responsible for the children’s medical and dental expenses. The mother was not obligated to pay any child support. The father thereafter filed a petition for a modification seeking child support from the mother, alleging that his income had decreased since the time of the divorce decree. The trial court, without stating the basis therefor, dismissed the petition on motion of the mother, and we granted the father’s application for discretionary appeal.

The sole enumeration of error contends that the trial court erred in holding that the original decree was not subject to modification under Code Ann. § 30-222 (Ga. L. 1955, pp. 630, 631, as amended), which provides: “Such an application [for revision of an alimony award] can be filed only where a party has been ordered by the. fined [570]*570judgment in an alimony, or divorce and alimony, suit to pay permanent alimony in weekly, monthly, annual, or similar periodic payments, and not where the former spouse of such party, or child or children, or both, have been given an award from the corpus of the party’s estate in lieu of such periodic payment.” No other issue is raised in the briefs filed by the parties.

Decided June 22, 1982. Herschel B. Herrington, for appellant. Paul W. Calhoun, Jr., for appellee.

In Livsey v. Livsey, 229 Ga. 368, 369 (191 SE2d 859) (1972), we held that the right to petition for modification of child support “... is a right which belongs to the child or children involved which may be exercised at the election of the mother or other person having legal custody of the children under the terms of the divorce decree. Since this right belongs to the children and not to the mother, she cannot waive it. [Cits.] It follows that even if the agreement relied upon by the appellant can be said by its terms to have waived the right to seek a revision of the child support payments awarded under the divorce decree, it was not effective for that purpose and the trial court properly overruled the motion to dismiss.” See also Lanning v. Mignon, 233 Ga. 665 (212 SE2d 834) (1975); Mitchell v. Mitchell, 235 Ga. 101 (218 SE2d 747) (1975); Quarles v. Quarles, 237 Ga. 703 (229 SE2d 452) (1976). Accordingly, the decree is properly subject to a petition for modification.

Judgment reversed and remanded.

All the Justices concur, except Hill, P. J., who concurs specially.

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292 S.E.2d 814, 249 Ga. 569, 1982 Ga. LEXIS 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crosby-v-crosby-ga-1982.

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