Opinion
18761.
SUBMITTED OCTOBER 11, 1954.
DECIDED NOVEMBER 8, 1954. REHEARING DENIED DECEMBER 2, 1954.
Injunction. Before Judge McClure. Catoosa Superior Court. May 10, 1954.
John E. Wiggins, for plaintiff in error.
Painter Cain, contra.
1. The petition, brought in the Superior Court of Catoosa County, sought to attach the mother for contempt of court and prayed for equitable relief against her, alleging that she was a resident of Fulton County. The court after hearing evidence found that the mother was not in contempt of court, but entered an order granting equitable relief prayed for by the father. The original order of the court, to the effect that the child should remain within the jurisdiction of the court and that the court retained jurisdiction of the cause and parties thereto, constitutes an attempt on the part of the trial court to retain exclusive jurisdiction of the case, which this court held in Burton v. Furcron, 207 Ga. 637 ( 63 S.E.2d 650), could not be done.
2. It is well settled in Georgia that the award of custody in divorce proceedings is conclusive between the parties, as to the right of custody, unless a change of circumstances affecting the interest and welfare of the children is shown. And a decree of divorce awarding custody of a minor child is a final judgment on the facts then existing. Thereafter proceedings relating to the custody of the minor child, against the person awarded custody by the divorce court, must be brought in the county of such person's residence. Danziger v. Shoob, 203 Ga. 623 ( 48 S.E.2d 92); Brinson v. Jenkins, 207 Ga. 218 ( 60 S.E.2d 440).
3. Accordingly, the petition, alleging that the mother was a resident of Fulton County, was subject to demurrer on the ground that no substantial relief was prayed against any party litigant who was a resident of Catoosa County, and therefore the court was without jurisdiction. The principal reason which the father alleged as constituting a ground for equitable relief was that the mother had married another person and moved her residence to Fulton County. On the question as to the right of the superior court to grant equitable relief in the county where a person to whom custody was awarded has moved his residence, see Harrison v. Kelly, 209 Ga. 537 (2), 540 ( 74 S.E.2d 546).
4. The error in overruling the mother's general demurrer rendered further rulings nugatory.
Judgment reversed. All the Justices concur.
SUBMITTED OCTOBER 11, 1954 — DECIDED NOVEMBER 8, 1954 — REHEARING DENIED DECEMBER 2, 1954.
On April 3, 1954, John H. North, Jr., filed in Catoosa Superior Court, against Mrs. Laura Frances Gibbs, formerly North, a petition seeking to have the defendant adjudged in contempt of court because of alleged disobedience of certain provisions regarding custody of their minor daughter, which were included in a decree of divorce granted to the wife on February 10, 1951, and also seeking injunctive relief in aid of the judgment. The divorce decree allowed each of the parties to remarry and awarded permanent custody of the child to the mother. It provided that the father should be permitted to visit the child at reasonable times. He was to be permitted to take the child into his home or elsewhere every other Sunday until she reached the age of 18 months, the child to be returned to the home of the mother at 6 p. m. on said Sundays. After the child reached 18 months of age, the father was to have custody every other week end, and for a period of two weeks during the summer of each year beginning in 1952, or for a period of time equal to the father's vacation period, not to exceed three weeks. The decree concluded: "The child shall remain within the jurisdiction of this court excepting such times as either of the parties hereto may carry the child in their custody beyond the jurisdiction of this court on temporary visits or on vacation periods. Any such visit shall not extend to such length of time as to materially affect the provisions of this decree. This court retains jurisdiction of this cause and the parties thereto."
The father alleged substantially the following in the present petition as amended: The mother has married James W. Gibbs, and she and the child reside with him in Fulton County. The mother violated the decree, (1) in refusing to deliver the child to the father when he called for it at the residence of the mother in Atlanta on Saturday, February 20, 1954, and on Saturday, March 20, 1954; (2) in removing the child from Catoosa County to Fulton County for such length of time as to materially affect the provisions of the decree; (3) in regularly failing to deliver the child to a place within the jurisdiction of the court in accordance with the provisions of the decree, to wit, in Catoosa County, every other Saturday morning, where the father could secure the child for the week end. It was further alleged that, on the week ends when the father had custody, he returned the child to the home of its maternal grandparents in Catoosa County, which was the home provided in the decree and was the only place to which he could return the child within the jurisdiction of the court.
General and special demurrers were interposed by the mother to the petition as amended. The trial court overruled the general demurrers. Certain grounds of the mother's special demurrers to the petition as amended were overruled and other special grounds were sustained.
Upon the trial of the case, the trial court held that the mother was not in contempt, but entered a judgment which stated that the language "within the jurisdiction of the court" in the original decree meant that the child was to remain in Catoosa County, and the court enjoined the mother from taking the child out of Catoosa and from keeping her in Fulton County.
To the above judgments the mother excepted in a direct bill of exceptions.