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Alimony, custody of child, etc. DeKalb Superior Court. Before Judge Guess. December 3, 1957.
WYATT, Presiding Justice.
The judgment under review in this case was not error for any reason assigned.
Lorraine Fitch Sheffield filed suit for divorce and alimony in DeKalb Superior Court against Wade Morton Sheffield, Sr., and prayed for custody of their minor child, Wade Morton Sheffield, Jr. A divorce was obtained on September 16, 1955. The parties, prior to the divorce decree, entered into an agreement for the purpose of settling all questions as to alimony, custody, support and dower rights and property rights. This agreement was approved by the court and made the judgment of the court. The agreement, thus made the judgment of the court, provided stated sums to be paid as alimony for the support of the wife and stated sums for the support of the minor child. It was provided in the agreement "That the custody of the minor child, Wade Morton Sheffield, Jr., be in the plaintiff subject to limitations hereinafter imposed.
"That the defendant above will have the child, Wade Morton Sheffield, Jr., from one-thirty p.m. each Friday afternoon until six-thirty p.m. Sunday afternoon commencing on Friday, August 19, 1955, and likewise on every other week-end thereafter until the child has reached his eighteenth birthday, dies, becomes self-supporting, or until further order of this court. The defendant, Wade Morton Sheffield, Sr., has the privilege of reasonable visitation at any other time with the child from one-thirty p.m. until six-thirty p.m. and other such times as the parties may mutually agree upon.
"That the defendant, Wade Morton Sheffield, Sr., shall have the child for two weeks vacation period during the summer commencing during the summer of 1956 and likewise every summer thereafter until the child reaches eighteen years of age, dies, becomes self-supporting, or until further order of this court.
"It being agreed that neither party is to take the child without the limitations or bounds of the State of Georgia unless especially authorized by an order of this court (except during the aforesaid vacation periods.)"
On May 10, 1956, Lorraine Fitch Sheffield Morris filed her petition in DeKalb Superior Court, in which she alleged that, on April 28, 1956, she married Carl Morris, an officer in the United States Army, who had been ordered to report for duty in Honolulu, Territory of Hawaii. She sought to have the original decree as to custody modified so as to permit her to remove the child beyond the limits of the State of Georgia. On August 2, 1956, the Judge of the Superior Court of DeKalb County sustained a demurrer to the petition to modify and dismissed the same. This judgment was not excepted to. Thereafter, Lorraine Fitch Sheffield Morris proceeded to Honolulu and carried the child with her. On July 15, 1957, she filed in DeKalb Superior Court her affidavit alleging that Wade Morton Sheffield, Sr., was in arrears in his alimony payments in the sum of $1,150, and prayed that an execution issue. The execution was ordered issued. Whereupon, she sued out garnishment proceedings, which were served on the employer of Wade Morton Sheffield, Sr. This was all ex parte without notice to Sheffield.
Only July 22, 1957, Wade Morton Sheffield, Sr., filed his motion to vacate and set aside the judgment ordering the execution to issue and the garnishment proceedings, upon the ground that Lorraine Fitch Morris had violated her agreement and had defied the judgment of the court. Numerous demurrers were filed to this motion and also a plea to the jurisdiction. The plea was not passed upon. The trial judge overruled the demurrers and vacated the order requiring the execution to issue, and the garnishment proceedings based thereupon until further order of the court. The exception here is to these judgments.
1. The plaintiff in error obtained no ruling on her plea to the jurisdiction, but argues in this court that the general demurrer should have been sustained upon this ground, for the reason that it appeared on the face of the petition that she was a resident of Honolulu, Territory of Hawaii, and that the Superior Court of DeKalb County had no jurisdiction of her. We deem it sufficient to say that she could not voluntarily come into the courts of DeKalb County seeking affirmative relief, and then contend that the court had no jurisdiction to adjudicate any contention the defendant had as to why she should not be permitted to proceed. The general demurrer raising this question was, therefore, clearly without merit.
2. We have examined the numerous special demurrers and find them all to be without merit.
3. We now consider the judgment rendered in this case, as follows: "After consideration, it appears that the plaintiff wilfully violated the order of this court and her solemn agreement by taking said minor child out of the State of Georgia and thereby preventing the defendant father from seeing his child. Plaintiff continues to absent herself from this State while seeking to collect the alimony from the defendant. Defendant is able and willing to abide by the order of this court and pay the alimony if the plaintiff will bring his child back. To defy the order of court on one hand and on the other ask for aid is so contrary to equity and good conscience the court is of the opinion that it would constitute a legal wrong.
"Therefore, the judgment of July 22, 1957, is vacated and set aside until further (order) of court."
It will be noted that the judgment under review did not alter the original alimony judgment, and in no way relieves the father from complying with the judgment, but simply provided that, so long as the plaintiff in the alimony proceedings openly defied her agreement and an order of court, she could not resort to the very court she thus defied to enforce any right she had under the judgment. It does not appear that the child is in any way destitute or is not being cared for. If this appeared, the court would probably have authority to make some other provision by virtue of which the child could receive the support.
The many decisions cited by the plaintiff in error dealing with the authority of the court to modify or change a final decree in a divorce and alimony case have no application here for the very good reason the judgment under review did not do that. For the same reason, we do not pass upon the question as to whether or not the facts alleged show a temporary absence from the jurisdiction of the court on the part of the wife and child, or whether the facts alleged would authorize the judge to change the custody of the child because of a change in conditions affecting the welfare of the child. We have found no case dealing with the factual situation here presented, and none has been called to our attention. We do find decisions which, while not dealing with the exact question here presented, do contain language illustrative of the thinking of the court on the question. In King v. King, 202 Ga. 838 (2) (44 S. E. 2d 791), this court said: "It is thus against the policy of the law to permit removal of a child from the jurisdiction of the State unless its welfare would be better served thereby, although such removal may be permitted by the Court in its discretion, in a proper case." In Stout v. Pate, 209 Ga. 786 (1) (75 S. E. 2d 748), this Court said: "While a change of residence of one of the parents, in and of itself--if there be nothing in the previous order preventing the removal of the children from the State--would not be such a change of circumstances and conditions affecting the interest and welfare of the children as to authorize a modification of the judgment for that reason alone." See also, Pruitt v. Butterfield, 189 Ga. 593 (6 S. E. 2d 786), and Stallings v. Bass, 204 Ga. 3 (48 S. E. 2d 822).
In the instant case, the wife voluntarily agreed not to remove the child from the State of Georgia. She permitted this agreement to be made the judgment of the court. After she had married again, and wanted to remove from the State, she petitioned the court to modify the original judgment so that she could take the child out of the State. Her petition was dismissed upon demurrer, thus denying her prayer. She did not except to this judgment, but proceeded to take the child from the State of Georgia in defiance of her agreement and two judgments of the superior court. She then comes into the very court that she thus openly defies and seeks to enforce the portion of the judgment that is favorable to her. The court denied her the processes of the court to enforce her judgment so long as she openly defied its judgments except in so far as they were favorable to her. We think the court had this right. It follows, the judgment under attack was not error for any reason assigned.
Emmett O. Dobbs, Jr., Paul L. Lindsay, Jr., contra.
Abraham J. Walcoff, for plaintiff in error.
Saturday May 23 01:23 EDT

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