Pirkle v. Pirkle

Supreme Court of Georgia

Pirkle v. Pirkle

95 S.E.2d 663, 212 Ga. 752, 1956 Ga. LEXIS 517

CourtSupreme Court of Georgia

DecidedDecember 5, 1956

Docket19464

StatusPublished

Cited by9 cases

This text of 95 S.E.2d 663 (Pirkle v. Pirkle) 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

Pirkle v. Pirkle, 95 S.E.2d 663, 212 Ga. 752, 1956 Ga. LEXIS 517 (Ga. 1956).

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Opinion

Wyatt, Presiding Justice.

On June 23, 1949, Mrs. Lillon Louise Pirlde filed her petition against Walter Edwin Pirlde, seeking a total divorce, alimony and custody of the minor children. A consent decree was entered on January 9, 1950, which, among other things, provided as follows: “The court awards custody of the children of the parties as follows: To the plaintiff, with the right of visitation by the defendant to be determined *753 by the court upon application.” On March 10, 1956, Walter Edwin Pirlde filed his petition against Mrs. Lillon Louise Pirkle in the style and under the same Turner Superior Court number as the former divorce proceeding, seeking to obtain a definite determination of his visitation rights. There was no prayer for process and no process was attached. At the hearing, the defendant made an oral motion to dismiss the petition. The motion was sustained, and the petition was dismissed. The exception here is to that judgment. Held:

Submitted September 10, 1956 Decided December 5, 1956. John R. Rogers, for plaintiff in error. James H. Pate, contra.

1. “A judgment fixing the custody of a minor child of divorced parents is a final one on the facts then existing and any attempt by the trial judge to retain jurisdiction of the child is a nullity. Anthony v. Anthony, 212 Ga. 356 (92 S. E. 2d 857) and citations.” Perry v. Perry, 212 Ga. 668 (1) (95 S. E. 2d 2).

2. After the adjournment of the term during which it was rendered, there is no procedure provided under the law of this State by which to amend or modify a judgment fixing the custody of a minor child. The remedy is by a new petition based upon sufficient legal grounds and instituting a new case for a redetermination of the rights of custody; not by petition to modify or amend the original decree. Perry v. Perry, supra, and cases cited.

3. It therefore follows, the judgment of the court below, sustaining the motion to dismiss the petition and dismissing the petition, was not error.

Judgment affirmed.

All the Justices concur.

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Wyatt, Presiding Justice.

On June 23, 1949, Mrs. Lillon Louise Pirlde filed her petition against Walter Edwin Pirlde, seeking a total divorce, alimony and custody of the minor children. A consent decree was entered on January 9, 1950, which, among other things, provided as follows: “The court awards custody of the children of the parties as follows: To the plaintiff, with the right of visitation by the defendant to be determined *753 by the court upon application.” On March 10, 1956, Walter Edwin Pirlde filed his petition against Mrs. Lillon Louise Pirkle in the style and under the same Turner Superior Court number as the former divorce proceeding, seeking to obtain a definite determination of his visitation rights. There was no prayer for process and no process was attached. At the hearing, the defendant made an oral motion to dismiss the petition. The motion was sustained, and the petition was dismissed. The exception here is to that judgment. Held:

Submitted September 10, 1956 Decided December 5, 1956. John R. Rogers, for plaintiff in error. James H. Pate, contra.

1. “A judgment fixing the custody of a minor child of divorced parents is a final one on the facts then existing and any attempt by the trial judge to retain jurisdiction of the child is a nullity. Anthony v. Anthony, 212 Ga. 356 (92 S. E. 2d 857) and citations.” Perry v. Perry, 212 Ga. 668 (1) (95 S. E. 2d 2).

2. After the adjournment of the term during which it was rendered, there is no procedure provided under the law of this State by which to amend or modify a judgment fixing the custody of a minor child. The remedy is by a new petition based upon sufficient legal grounds and instituting a new case for a redetermination of the rights of custody; not by petition to modify or amend the original decree. Perry v. Perry, supra, and cases cited.

3. It therefore follows, the judgment of the court below, sustaining the motion to dismiss the petition and dismissing the petition, was not error.

Judgment affirmed.

All the Justices concur.

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95 S.E.2d 663, 212 Ga. 752, 1956 Ga. LEXIS 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pirkle-v-pirkle-ga-1956.

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