McNeal v. McNeal

Supreme Court of Georgia

McNeal v. McNeal

213 S.E.2d 845, 233 Ga. 836, 1975 Ga. LEXIS 1459

CourtSupreme Court of Georgia

DecidedFebruary 25, 1975

Docket29551

StatusPublished

Cited by21 cases

This text of 213 S.E.2d 845 (McNeal v. McNeal) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNeal v. McNeal, 213 S.E.2d 845, 233 Ga. 836, 1975 Ga. LEXIS 1459 (Ga. 1975).

Pincite

Opinions

Per curiam.

The issue here is whether a counterclaim seeking modification of a permanent alimony award can be filed in answer to an application for contempt.

The parties were divorced in Spalding Superior Court on November 16,1973, and the wife-appellant was awarded the sum of $200 per month alimony. The father-appellee was awarded custody of the children. The wife filed an application for contempt against the husband-appellee in Spalding Superior Court on June 11, 1974, for failure to pay alimony. Appellee answered denying the arrearage and filed a counterclaim seeking modification of the original decree as to alimony payments and visitation rights of the appellant. Appellant filed a motion to strike said counterclaim for [837]*837lack of jurisdiction of the subject matter and because of improper venue in that she was a resident of Bibb County, Georgia.

Submitted January 3, 1975 Decided February 25, 1975. Beck, Goddard, Owen & Murray, Howard P. Wallace, for appellant. Larry Evans, for appellee.

After a hearing, the trial court found the appellee in contempt but denied the motion to dismiss the counterclaim. With a certificate for immediate review, the appellant appeals from that portion of the order which denied her motion to dismiss the counterclaim.

We reverse. The only issue raised by a contempt citation is contempt vel non. The provisions of the Civil Practice Act (Ga. L. 1966, pp. 609, 625; Code Ann. § 81A-113) with respect fo counterclaims and cross complaints are not applicable in contempt cases. As we said in Davis v. Davis, 230 Ga. 33 (195 SE2d 440), a motion for contempt "is not tantamount to the filing of a complaint” so as to allow a counterclaim for modification of a former custody judgment based on a change of conditions.

The trial court was without jurisdiction to consider the appellee’s counterclaim in this contempt proceeding and erred in overruling the appellant’s motion to dismiss same. See also Fernandez v. Fernandez, 232 Ga. 697 (208 SE2d 498).

Judgment reversed.

All the Justices concur, except Ingram and Hill, JJ., who concur specially, and Jordan and Hall, JJ., who dissent.

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Per curiam.

The issue here is whether a counterclaim seeking modification of a permanent alimony award can be filed in answer to an application for contempt.

The parties were divorced in Spalding Superior Court on November 16,1973, and the wife-appellant was awarded the sum of $200 per month alimony. The father-appellee was awarded custody of the children. The wife filed an application for contempt against the husband-appellee in Spalding Superior Court on June 11, 1974, for failure to pay alimony. Appellee answered denying the arrearage and filed a counterclaim seeking modification of the original decree as to alimony payments and visitation rights of the appellant. Appellant filed a motion to strike said counterclaim for [837]*837lack of jurisdiction of the subject matter and because of improper venue in that she was a resident of Bibb County, Georgia.

Submitted January 3, 1975 Decided February 25, 1975. Beck, Goddard, Owen & Murray, Howard P. Wallace, for appellant. Larry Evans, for appellee.

After a hearing, the trial court found the appellee in contempt but denied the motion to dismiss the counterclaim. With a certificate for immediate review, the appellant appeals from that portion of the order which denied her motion to dismiss the counterclaim.

We reverse. The only issue raised by a contempt citation is contempt vel non. The provisions of the Civil Practice Act (Ga. L. 1966, pp. 609, 625; Code Ann. § 81A-113) with respect fo counterclaims and cross complaints are not applicable in contempt cases. As we said in Davis v. Davis, 230 Ga. 33 (195 SE2d 440), a motion for contempt "is not tantamount to the filing of a complaint” so as to allow a counterclaim for modification of a former custody judgment based on a change of conditions.

The trial court was without jurisdiction to consider the appellee’s counterclaim in this contempt proceeding and erred in overruling the appellant’s motion to dismiss same. See also Fernandez v. Fernandez, 232 Ga. 697 (208 SE2d 498).

Judgment reversed.

All the Justices concur, except Ingram and Hill, JJ., who concur specially, and Jordan and Hall, JJ., who dissent.

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Bluebook (online)

213 S.E.2d 845, 233 Ga. 836, 1975 Ga. LEXIS 1459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneal-v-mcneal-ga-1975.

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