McClain v. McClain , 241 Ga. 422 ( 1978 )

Hill, Justice,

dissenting.

I dissent from Division 2 of the majority opinion for the reason that Anthony v. Penn, 212 Ga. 292 (92 SE2d 14) (1956), does not hold that the Act would be unconstitutional if applied to prior judgments. It held, as shown by the headnote as well as the text of the opinion, that the 1955 Act showed no legislative intent that it should be applied to alimony judgments rendered prior to the passage of the Act. It commented in passing that retroactive laws are prohibited by the Constitution. It did so to support the court’s conclusion that a statute should be given prospective application only unless it shows that the General Assembly intended that it operate retroactively.

In my view the 1977 Act (Ga. L. 1977, pp. 1253, 1254-1255; Code Ann. § 30-220) does not operate retroactively. It simply provides that in the future the former husband’s alimony obligation may be modified upon a change in the income and financial status of the wife, just as alimony obligations heretofore could be modified pursuant to the 1955 Act upon a change in the income and financial status of the husband. It thus is not invalid as retroactive. Murphey v. Murphey, 215 Ga. 19 (108 SE2d 872) (1959); State of Ga. v. Callaway, 236 Ga. 613 (225 SE2d 230) (1976); Stith v. Morris, 241 Ga. 247 (1978). See also Washington Statewide Organization of Stepparents v. Smith, 536 P2d 1202 (Wash. 1975).

The difficulty with the court’s decision is that it may render the 1955 Act unconstitutional as to all alimony judgments entered between 1955 and 1977 due to the disparate treatment as between a change in the income and financial status of the husband on the one hand, and a change in income and financial status of the wife on the other hand.

Today, with more and more divorced wives working, this court should not require a former husband to continue making alimony payments to a former wife who earns as much as or more than he does. I therefore dissent.

I am authorized to state that Chief Justice Nichols joins in this dissent.