Dupre v. Scappaticcio

Marshall, Justice. Pursuant to Code Ann. § 30-301 (Ga. L. 1958, pp. 204, 205; 1977, pp. 619, 620) and following a hearing which neither the appellant father nor his attorney attended, the trial court awarded the appellee mother permanent child support for one of the parties’ two children, permanent custody of which child had been awarded her in a modification of the divorce decree. In his appeal from the award of the permanent child support, the father contends that the statutory basis for such an award has been held to be unconstitutional. See Orr v. Orr, — U. S. — (99 SC 1102, 59 LE2d 306) (1979); Stitt v. Stitt, 243 Ga. 301 (253 SE2d 764) (1979); Sims v. Sims, 243 Ga. 275 (253 SE2d 762) (1979). Contrary to the appellant’s position, however, the award was based upon Code Ann. § 30-301, supra, which has not been declared unconstitutional. Code § 30-207 applies to the award of alimony on the final trial, not subsequent to the decree, which is provided for by § 30-301, supra. Furthermore, although the constitutionality of § 30-207 was attacked in Stitt v. Stitt, supra, it was not ruled on therein or elsewhere. The constitutionality of a statute is presumed until it is validly attacked. Connelly v. Balkcom, 213 Ga. 491 (1) (99 SE2d 817) (1957). No constitutional attack on Code Ann. § 30-301 was made by the appellant in the trial court, and the failure to raise the issue there precludes consideration of its constitutionality on appeal. Alexander v. State, 239 Ga. 810 (239 SE2d 18) (1977); [180] Yield, Inc. v. City of Atlanta, 239 Ga. 578 (238 SE2d 351) (1977); Roberts v. Roberts, 226 Ga. 203 (6) (173 SE2d 675) (1970). Submitted June 22, 1979 Decided September 7, 1979. Paul R. Koehler, for appellant. Charles W. Smegal, for appellee. Accordingly, the order awarding permanent child support is affirmed. Judgment affirmed. All the Justices concur.