Otwell v. Otwell

184 S.E.2d 461, 228 Ga. 172, 1971 Ga. LEXIS 501

• Court: Supreme Court of Georgia
• Decided: October 7, 1971
• Docket: 26738
• Status: Published

Opinion

Undercofler, Justice.

This action involves divorce and custody of children. The appeal is from an order of the trial court granting plaintiff’s motion to strike the defendant’s plea of res judicata. Defendant in her plea alleges that she and the plaintiff were divorced by a Nevada decree and custody of the children awarded to her. Plaintiff alleges the Nevada court never acquired jurisdiction of him and the Nevada decree is not entitled to full faith and credit. The Nevada decree asserts jurisdiction of the plaintiff was obtained by personal service in Georgia. Held:

Substituted service as to the issue of divorce is valid. Therefore the Nevada decree is prima facie entitled to full faith and credit as to this issue. Daniel v. Daniel, 222 Ga. 861 (152 SE2d 873). Substituted service as to the issue of custody is not valid. Personal service is required. Therefore the Nevada decree which shows service outside of its jurisdiction is not entitled to full faith and credit as to this issue. Carter v. Carter, 201 Ga. 850 (41 SE2d 532).

Argued September 16, 1971 Decided October 7, 1971. Fredericks, Jones & Wilbur, Carl Fredericks, for appellant. William E. Otwell, Sr., for appellee.

Judgment reversed in part; affirmed in part.

All the Justices concur.