Opinion
30455.
SUBMITTED NOVEMBER 4, 1975.
DECIDED JANUARY 8, 1976.
Modification of child custody, etc. DeKalb Superior Court. Before Judge Henley.
Charles A. Pemberton, for appellant.
Neely, Freeman Hawkins, Albert H. Parnell, for appellee.
This is an appeal from an order dismissing a petition for modification of child support payments. The petition (a cross complaint to an action seeking modification of child visitation) was filed on April 10, 1975. The cross complaint was dismissed upon the ground that it had been filed within two years from the date of a previous order modifying the child support payments in South Carolina.
Code Ann. § 30-220 provides in part: "No petition may be filed by the wife under this law ... within a period of two years from the date of the filing of a previous petition by the wife under this law." (Emphasis supplied.) The statute refers to the filing of a petition and not to the date an order is issued in a previous suit for modification. In the present case the record does not show when the previous petition was filed. The order modifying the child support payments was entered on September 18, 1973, and recites: "This matter was heard by me on April 5, 1973." Obviously, the petition had to be filed prior to the hearing.
The Code section refers only to the filing and makes no reference to the date of any previous order. The present petition was not premature under the limitation of Code Ann. § 30-220.
The trial court erred in dismissing the present petition for modification.
Judgment reversed. All the Justices concur, except Gunter, Ingram and Hill, JJ., who concur in the judgment only.