Opinion
23269.
ARGUED DECEMBER 14, 1965.
DECIDED JANUARY 18, 1966.
Custody of children. Jackson Superior Court. Before Judge Barrow from Western Circuit.
Quillian Quillian, Alfred A. Quillian, Davis Davidson, Jack S. Davidson, for appellant.
Mae Dee Bell Adams, per se, for appellee.
1. An order or judgment merely declaring the rights of the parties, without any express command or prohibition, can not be made the basis of a contempt proceeding.
2. After the expiration of the term at which judgment was entered in an action for divorce, alimony, and the custody of children, a petition filed in the same case, seeking a modification of the custody award, can not be maintained.
ARGUED DECEMBER 14, 1965 — DECIDED JANUARY 18, 1966.
Mrs. Mae Dee Bell Adams filed an action in Jackson Superior Court against James Kenneth Adams for divorce, alimony, and the custody of their two minor children. On September 5, 1961, a judgment for divorce and alimony was entered pursuant to the jury verdict. Permanent custody of the two minor children was awarded to the father with visitation privileges in the mother.
The petition by Mrs. Adams which instituted the litigation presently before this court for review was filed on December 16, 1963. This petition was filed under the number and style of the divorce action which terminated on September 5, 1961, and sought an order directing the defendant to "turn the children over to her" for visitation as provided by the decree, and prayed that the order be enforced by the court. On certification of the Judge of the Superior Courts of the Piedmont Judicial Circuit that he was disqualified in the case, the Judge of the Superior Courts of the Western Judicial Circuit took jurisdiction of the matter, and a number of hearings were held. Mrs. Adams filed another petition on May 31, 1965, entitled in the divorce action, praying that the defendant be adjudged in contempt of court for failure to comply with an order of May 15, 1965, directing the defendant to have the children available at his residence at a stated date and hour in order that the petitioner might exercise her visitation privileges.
The defendant appealed from judgments rendered by the Judge of the Superior Courts of the Western Judicial Circuit denying his motion to dismiss, and overruling three special pleas asserting the disqualification of the Judge of the Superior Courts of the Western Judicial Circuit.
1. "An order or judgment that merely declares the rights of the parties, without any express command or prohibition, is not one which may be the basis of contempt proceedings." Mote v. Mote, 214 Ga. 134 ( 103 S.E.2d 565); Hammock v. Hammock, 209 Ga. 751 ( 76 S.E.2d 15). The order entered on September 5, 1961, granting custody of the minor children of the parties to the father, merely declared the visitation privileges of the mother, and did not make any express command or prohibition in connection with these privileges. The visitation rights of the mother under this order could not be enforced by attachment for contempt.
2. The petitions by the mother under consideration on this appeal were filed in the original divorce action long after the expiration of the term at which the judgment in the divorce action was entered. "The term at which the judgment sought to be modified having expired, a petition filed in the original case did not give the trial court jurisdiction to modify a judgment awarding custody of minor children." Samples v. Alewine, 217 Ga. 669 ( 124 S.E.2d 394); Heffernan v. Heffernan, 216 Ga. 588 ( 118 S.E.2d 483); Palmer v. Bunn, 218 Ga. 244 ( 127 S.E.2d 372).
In the recent case of Thomas v. Thomas, 221 Ga. 652 ( S.E.2d ), it was held: "The judgment which modified the decree was rendered in the same case as the divorce decree and after the term expired. It was not brought under Code Ann. § 74-107 or in a separate habeas corpus action; hence, was a mere nullity. Palmer v. Bunn, 218 Ga. 244 ( 127 S.E.2d 372). The trial court had no jurisdiction of a petition to even construe a decree brought in and under the same number as the divorce, and not as required by the procedure recognized by Georgia law under which a final divorce decree may be modified, in any manner, subsequent to the expiration of the term at which it was rendered. Pirkle v. Pirkle, 212 Ga. 752 ( 95 S.E.2d 663)."
The proceedings under review in the present case attempted to modify a final divorce decree after the expiration of the term at which it was entered, by a modification of the custody provisions, and it was error to deny the motion to dismiss the proceedings.
Since the proceedings were void and lifeless, it is unnecessary to decide whether or not the judge hearing them was disqualified to act as contended in the special pleas.
Judgment reversed. All the Justices concur.