Ex Parte Allen

128 So. 801, 221 Ala. 393, 1930 Ala. LEXIS 287

• Court: Supreme Court of Alabama
• Decided: May 15, 1930
• Docket: 6 Div. 621.
• Status: Published

Opinion

POSTER, J.

The rule is now firmly established that, after a decree of divorce has been granted, and in it alimony payable monthly is provided, the court has the power and jurisdiction to modify the amount of the allowance at any time thereafter due to conditions which have changed since the entry of the decree. This is now held to be true whether the de- - cree granting divorce and awarding permanent alimony expressly reserve such jurisdiction or not. Epps v. Epps, 218 Ala. 667, 120 So. 150.

The petition here shows that the decree granting a divorce nnd fixing alimony at a monthly allowance did in fact reserve juris-, diction, though, as we have said, that circumstance is not now material.

The petition to modify undertakes to give some nature of excuse for not prosecuting it within the time allowed by the rule for-rehearings in equity. It then undertakes to show petitioner’s inability to meet the payments. B.ut it does not allege that the conditions upon which the relief is predicated did not exist at the time of the rendition of the final decree. True, the statements are made as of present conditions, but there is no allegation that those conditions are due to changes ofccurring since the decree. The decree was rendered December 31, 1929, in vacation; on a submission on December 19, 1929, in term' time. The petition to modify was filed'February 8, 1930. According to the interpretation which has been given sections 6636 and 6670, Code, and rules 81 and 78 .(Chilton v. Gurganus, 218 Ala. 145, 117 So. 655), thé petition came too late to be justified by them, and it is not based upon condi- ' tions alleged to have materially changed after -the entry of the final decree sought to be modified,- pursuant to the rules stated in Epps v. Epps, supra; Morgan v. Morgan, 211 Ala. 7; 99 So. 185.

' The petition was therefore properly dismissed.

Writ of mandamus is denied.

ANDERSON, C. J., and GARDNER and BOULDIN, J.T., concur.