Smith v. Smith

193 S.E.2d 599, 229 Ga. 580, 1972 Ga. LEXIS 683

Opinions

Undercofler, Justice.

Mattie Mae Allen Smith, a resident of Wilkinson County, filed an application in the nature of a habeas corpus in Washington County against her former husband, Billy Scott Smith, seeking custody of their minor child. The child had been awarded to the applicant by a decree of the Wilkinson Superior Court in a divorce action. The defendant father was granted visitation rights. The defendant filed a cross complaint contending that a material change of condition affecting the welfare of the child had occurred since the original award to the mother. The trial judge refused to consider the cross complaint. He held that jurisdiction of this issue was in the county of the mother’s residence. The trial judge awarded custody of the child to the applicant. The appeal is from this judgment. Held:

In Dwyer v. Krelstein, 211 Ga. 296 (85 SE2d 432) it was held: "Where a petition for habeas corpus is brought by a nonresident mother to obtain custody of her minor child in a court having jurisdiction of the father, who is alleged to be illegally restraining the child, and the father files a response asserting material changes in circumstances affecting the welfare of the child since the rendition of the decree awarding custody to the mother, it is erroneous for the court to strike these allegations of the response and to award the custody of the child to the mother on the pleadings then in the case.”

Submitted September 11, 1972 Decided October 5, 1972. Eva L. Sloan, for appellant. Boone & Scott, Walter Scott, for appellee.

Under this holding, when the mother filed a habeas corpus petition in the county of the father’s residence, she submitted herself to its jurisdiction and that court could decide the issue raised by the cross complaint seeking a change of custody of the minor child because of a material change of conditions.

Judgment reversed.

All the Justices concur, except Hawes, Gunter and Jordan, JJ., who dissent.