1. By her motion to dismiss and general demurrer, the defendant contends that the petition, seeking change of a prior final decree awarding custody of the child in the divorce action, and praying for the usual process of the court, requiring answer, is not authorized by the law of this State. The plaintiff had previously filed a petition to modify or amend the decree as to custody in the original case, and, on review of the judgment of the trial court, this court, in Perry v. Perry, 212 Ga. 668(2) (95 S.E.2d 2), held that jurisdiction of the subject matter of custody would not continue in the trial court "because of the original action, and could not be invoked by a petition or
While the question was not there decided, we are of the opinion that the reasoning of the court is sound, and that proof of such conditions would constitute cogent circumstances, which the court in the exercise of its discretion would be authorized to consider in passing upon a petition to change custody based thereon.
While, prior to the amendment of Code §§ 30-127 and 74-107 by an act of the legislature approved March 13, 1957 (Ga. L. 1957, p. 412), under decisions of this court it had been held that a change of custody of minor children based on a change in circumstances affecting the welfare of the children must be predicated upon changed circumstances relating to the person to whom the original award was made (Perry v. Perry, 212 Ga. 668, supra; Young v. Pearce, 212 Ga. 722, 95 S.E.2d 671, and cases cited) (though there have been expressions indicating that a broader basis of investigation might be considered: Handley v. Handley, 204 Ga. 57, 59, 48 S.E.2d 827), the act of 1957 authorized the trial judge, in the exercise of his discretion in the awarding of custody, to consider improvement in the health of the person seeking a change of custody. Under this amendment the trial judge in the instant case would be authorized to consider the questions raised by the allegations as to an improvement in the health of the father since the original award of custody, insofar as such might affect the best interest and welfare of the child. In our opinion, such allegations and those treated in the first paragraph of this division of the opinion were sufficient to set out a cause of action to change custody of the child involved, and the trial court did not err in overruling the general demurrer to the petition.
No attack was made on the constitutionality or validity of the act of 1957, supra, in the trial court by the pleadings or otherwise. "This court will not pass upon the constitutionality of an act of the General Assembly, unless it clearly appears in the
3. Prior to the passage of the act of the legislature approved March 9, 1955 (Ga. L. 1955, p. 630), a judgment awarding permanent alimony could not be changed or revised. Burch v. Kenmore, 206 Ga. 277 (56 S.E.2d 508), and cases there cited. The act of 1955 provides as follows: "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." The plaintiff here prays for a "proper adjustment" of the alimony decree providing support for the child, "taking into account the fact that during the time the child is in plaintiff's custody plaintiff will be providing his full support."
The act provides that there may be a revision of a judgment providing permanent alimony upon "showing a change in the income and financial status of the husband." We are of the opinion that the legislature did not intend to require a showing of a change in both "income and financial status," but rather a change in the husband's income "or" financial status. 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. "It is laid down as a rule of law that, in order to carry out the intention of the legislature, it is sometimes found necessary to read the conjunctions `or' and `and' one for the other. They may be used interchangeably where it may be necessary to carry out the intention of the legislature. See the following cases: State v. Brandt, 41 Iowa 593; State v. Myers, 10 Id. 448; People v. Sweetser, I Dak. 308; Fowler v. Padget, 7 T. R. 509; Reeks v. Mortlake, 6 East 37; Rolland v. Commonwealth, 82 Pa. St. 306, 326; Vance v. Grey, 9 Bush (Ky.) 656; Commonwealth
We are of the opinion that, if custody of the child should be changed from the mother to the father, who would then provide for its support, this would be such a change in his financial status as would authorize a revision of the judgment which provided permanent alimony to the wife for the child's support. Accordingly, since the petition stated a cause of action for a change in custody, it also states a cause of action for modification of the alimony judgment.
The contention of the plaintiff in error that the act of 1955 (Ga. L. 1955, p. 630) became effective after the judgment for alimony in this case became final, and therefore would not be applicable in this case, under the ruling in Anthony v. Penn, 212 Ga. 292 (92 S.E.2d 14), where it was held that said act did not apply to alimony judgments rendered prior to the passage of the act, is without merit. The act was approved March 9, 1955. The record in this case shows that the original judgment awarding custody and permanent alimony was entered on June 23, 1954. But, upon a petition of the wife to modify that judgment, filed in accordance with Code § 30-101 (as said section appeared at that time), a final judgment was not entered in this case until May 23, 1955, which was subsequent to the passage of the act permitting modification of alimony judgments. At the time the original judgment was entered in this case, Code § 30-101 (since repealed by Ga. L. 1956, p. 405) specifically provided that a verdict or judgment authorizing a total divorce and permanent alimony would not become final for a period of 30 days after the rendition thereof, but, at the expiration of said period of 30 days, would become of full force and effect unless a petition to modify same was filed by some party at interest. The defendant having filed a petition to modify and set aside the original judgment in accordance with the provisions of the Code, and
4. The special demurrers to paragraphs 4, 5, 6, 7, 8, 9, 10, and 14 are without merit. Each of the paragraphs alleges facts and circumstances as to the condition of the health of the father at the time of the original award of custody. Such facts are germane to the question of whether there has been any improvement in his health between the time of the original award and the time of filing the petition seeking a change of that prior judgment.
5. The special demurrers to paragraphs 15, 16, and 25 are without merit, as these paragraphs allege facts as to the condition of the health of the petitioner at the time of filing the petition, and are germane and relevant to the issues.
6. After careful consideration of the remaining special demurrers, we are of the opinion that they are without merit.
Judgment affirmed. All the Justices concur.