
    35574.
    HORNE v. HORNE.
   Clarke, Justice.

The wife, appellee in this case, filed an action seeking a modification of a prior award of permanent alimony in the form of child support. The husband appellant here, defended the action and filed a counterclaim alleging he now has custody of one of the minor children. Because of this, he claimed entitlement to permanent alimony in the form of child support from the wife.

The trial court refused to charge the jury as to the counterclaim asserted by the husband. As a result of this, the husband was refused the opportunity of being granted permanent alimony in the form of child support.

The first question to be determined is whether the appeal is properly before this court in the absence of an application for appeal having been filed in accordance with the provisions of Code Ann. § 6-701.1. No such application has been filed in this case.

Among other things, Code Ann. § 6-701.1 requires the filing of an application for appeal in cases involving appeals from judgments or orders granting or refusing to grant a divorce or temporary or permanent alimony. In the instant case, it is obvious that the trial court in refusing to charge the jury as to the counterclaim asserted by the husband thereby refused to grant such alimony. Therefore, this case falls under the provisions of Code Ann. § 6-701.1.

The only other question in this connection which could be raised is whether or not this Code section contemplates actions brought for the purpose of modifying alimony orders. We decide this question in the affirmative. If a modification is granted, then new alimony is granted. If a modification is not granted, then new alimony is refused. Therefore, a suit for the modification of an alimony order comes under the purview of Code Ann. § 6-701.1.

Submitted November 9, 1979

Decided February 6, 1980

Rehearing denied February 26, 1980.

Eugene Black, Jr., for appellant.

Jerry W. Brimberry, for appellee.

Appeal dismissed.

All the Justices concur. 
      
      The husband does not appeal from the modification allowing a new award of child support for the child in the wife’s custody, but appeals only from the failure of the trial court to charge the jury as to his counterclaim.
     