A rehearing was granted in this cause. The alternative writ required the Circuit Judge to adjudicate a petition for modification of the alimony provisions of a final decree of divorce or to show cause for not doing so. *Page 182
In his answer to the alternative writ the Circuit Judge states that "in the absence of fraud, he had no jurisdiction or authority over the final decree, to grant the relief prayed."
The final decree requires the divorced husband to establish a trust fund for the benefit of the divorced wife and the two minor children, and provides: "that until said trust fund of $150,000.00 shall have been established and provided, the said Frank H. Willard be, and he is hereby, required to pay to the complainant, Priscilla Willard, the sum of $150.00 per week for her support and maintenance"; and "that the provisions of this decree with reference to payments by the defendant, Frank H. Willard, and to said Trust Fund, and to the said complainant Priscilla Willard, are in lieu of all claims of the complainant, Priscilla Willard against the defendant, Frank H. Willard, for alimony, support money or otherwise." "And the court hereby retains jurisdiction of this cause for the purpose of requiring each of the parties to perform the requirements of this decree."
If subsequent events affect the rights of either party to an enforcement of the decree or a material part thereof, the parties are entitled to be heard thereon.
The jurisdiction reserved by the decree authorizes appropriate judicial enquiries as to the rights of the parties to have the decree enforced at least in so far as it provides for alimony.
The trust fund referred to in the decree has not been established. A portion at least of the decree relates to alimony. This appears at least prima facie as matter of law by the decree to which the petition is addressed as is indicated by the previous opinion herein. Allegations of the petition relate to matters occurring since the date of the *Page 183 decree affecting the enforcement of the decree, and the Circuit Judge has power to determine such matters.
The answer, considered with the decree, does not show "the court had lost control and jurisdiction of said final decree," as stated in the answer.
A peremptory writ is awarded but will not be issued unless it is required.
ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur.