Opinion
16952.
FEBRUARY 16, 1950.
Divorce, etc. Before Judge Brooke. Cobb Superior Court. October 1, 1949.
Frank Lawson and Miller Head, for plaintiff.
Willingham, Cheney, Hicks Edwards, for defendant.
1. It not appearing from the record in this case that any order adjourning the July term of Cobb Superior Court was entered (Code, § 24-3008), it will be presumed that the term continued until five days before the November term (Code, § 24-3010). Dover v. Dover, 205 Ga. 241 (2, 3) ( 53 S.E.2d 492). The order of October 1, 1949, to which exception is taken in this case, was rendered at the same term of court at which the original decree of July 19, 1949, was entered.
2. "The superior court has plenary power over its orders and judgments during the term at which they are entered, and may amend, correct, or revoke them, for the purpose of promoting justice." Deen v. Baxley State Bank, 192 Ga. 300 ( 15 S.E.2d 194); Bowen v. Wyeth, 119 Ga. 687 ( 46 S.E. 823); Berrien County Bank v. Alexander, 154 Ga. 775, 778 ( 115 S.E. 648). "This power may be exercised by the court, at the same term, on his own motion without notice to either party." Dover v. Dover, supra.
3. The judgment of the Florida court granting a divorce to the defendant, and awarding her custody of the minor child involved in the present action, is not shown to be invalid, and, accordingly, the judge of the superior court did not err in dismissing the citation for contempt and in modifying the decree of July 19, 1949, by revoking that part of the order awarding custody of the minor child to the petitioner. Brandon v. Brandon, 154 Ga. 661 (3) ( 115 S.E. 115).
Judgment affirmed. All the Justices concur.
No. 16952. FEBRUARY 16, 1950.
On February 11, 1949, Nesbitt L. Shivers filed an action for divorce against Lilla C. Shivers. In substance the petition alleged: The petitioner is a resident of Cobb County and has been for more than twelve months. The defendant is a resident of Tallahassee, Florida. The parties are living in a bona fide state of separation. There are three children. Emily, aged 7, Guy, aged 6, and Helen; aged 4. The custody of Emily was awarded to the petitioner in a habeas corpus proceeding in January, 1949. The other children are in the possession of the defendant, which possession is unlawful, the children having been removed by stealth from the custody and home of the petitioner by the defendant on November 3, 1948. A copy of a letter dated December 28, 1948, addressed to the petitioner, from an attorney in Tallahassee, Florida, is set out, in which the petitioner was advised, among other things, that the attorney had been employed by the defendant to bring a divorce action in Florida against the petitioner. Certain alleged acts of the defendant are set forth and relied upon by the petitioner as constituting cruel treatment. The prayers were for process, that service be had upon the defendant by publication, for the granting of a total divorce, and that custody of the minor children be awarded to the petitioner. Based upon a return of the sheriff that the defendant was not to be found in the county, an order for publication was entered on March 22, and on April 15, 1949, an order was filed declaring service perfected by publication.
On July 18, 1949, the petitioner filed an amendment, in which it was alleged: The defendant procured a decree of divorce in Leon County, Florida, on April 7, 1949. The petitioner believes and alleges that the decree is void because the purported residence or domicile of the defendant in Florida was in bad faith. The Florida decree purported to award the custody of Guy and Helen Shivers to the defendant. Whether the Florida decree was valid or void, there has been such a change of conditions as would authorize and demand a decree of the court awarding custody of the two minor children to the petitioner. The minor children have been in Pavo, Georgia, in the home of a named person, who is not a fit or proper person to have the care and custody of the children. The defendant has absented herself from the children for long periods of time, amounting in the aggregate to more than half of the time and she has for that reason been unable to give the children a parent's care and attention. The lawful residence and domicile of the children is in Cobb County, and their violent removal from Cobb County was contrary to law. The children are now in the territorial limits of the State of Georgia and subject to the jurisdiction of the Superior Court of Cobb County.
On July 19, 1949, a decree of total divorce was entered between the parties denying the defendant the right to remarry and awarding custody of two of the minor children, Emily and Guy to the petitioner. On August 5, 1949, a citation for contempt was issued against the defendant, Mrs. Shivers, on the application of the petitioner. The citation for contempt came on for hearing before the judge of the superior court on October 1, 1949. On that date the defendant filed a response, in which she alleged that a decree of divorce and custody of the minor child had been awarded to her by the Circuit Court in the Second Judicial Circuit of Florida, on April 7, 1949. A duly authenticated copy of the divorce proceedings was admitted in evidence at the hearing.
At the hearing, the defendant and her father denied any knowledge of the divorce proceedings in Cobb County. She contended that she was a resident of Florida, where she was employed as a teacher, that she had obtained permission from the judge of the court granting the divorce to attend summer school in Georgia, and for that reason had left the custody of the two children with her parents at Pavo while she attended school at Milledgeville until August 27, 1949, at which time she received a degree. During the period she was in school she visited the children at Pavo, and upon receiving her degree, returned to her Florida home with the minor children. At the time of the present hearing the children were at Pavo, she having left them with her parents in order to attend the hearing.
One of counsel for the petitioner testified that he went to Florida, where he consulted counsel for the defendant with reference to the defendant's divorce action, that while there he advised the defendant's attorney of the pending divorce case in Cobb Superior Court, and that after making such trip, he decided not to have his client intervene in the defendant's divorce action in Florida.
At the conclusion of the hearing, the judge of the superior court dismissed the citation for contempt and revoked so much of his order of July 19, 1949, as awarded the custody of Guy Shivers to the petitioner. The exception here is to this judgment and to the overruling of an oral motion to strike the defendant's response to the citation for contempt.