White v. White

199 S.E.2d 897, 231 Ga. 52, 1973 Ga. LEXIS 590

• Court: Supreme Court of Georgia
• Decided: September 10, 1973
• Docket: 28091
• Status: Published

Opinions

Undercofler, Justice.

Jack J. White, a resident of Tennessee, filed a complaint in the nature of a habeas corpus against his former wife Nanie White seeking the enforcement of visitation rights granted by a New Jersey divorce decree. He alleges that the defendant refused to allow him the right to exercise the visitation rights granted by the decree. The defendant filed an answer and a cross claim in which she sought a dismissal of the habeas corpus petition, a change of visitation privileges based on a material change of circumstances affecting the welfare of the children, and attorney fees.

After a hearing the trial court changed the visitation privileges of the complainant and awarded attorney fees to the attorney for the defendant. The plaintiff father appeals from this judgment. Held:

1. 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.” This ruling was followed in Smith v. Smith, 229 Ga. 580 (193 SE2d 599).

The appellant’s contention that the trial court arbitrarily converted his complaint in the nature of a habeas corpus into a petition to modify a New Jersey divorce decree is, therefore, without merit. The trial court also had jurisdiction to decide the issue of material changes in circumstances affecting the welfare of the children raised by the counterclaim. However, there is no transcript of evidence in this case and therefore this court cannot review the evidence upon which the trial court based its order.

Submitted July 13, 1973 Decided September 10, 1973. Hendon, Egerton & Harrison, M. W. Hendon, for appellant. Rees R. Smith, for appellee.

The case of Slowik v. Knorr, 222 Ga. 669 (151 SE2d 726) relied on by the appellant is not controlling here. In that case there was no personal service on the nonresident defendant. In this case the nonresident instituted the proceedings and invoked the jurisdiction of the courts of this state seeking the enforcement of his visitation rights.

2. It is error to allow a wife attorney fees in defending against her former husband’s action seeking enforcement of his visitation rights. Gallant v. Gallant, 223 Ga. 397 (156 SE2d 61).

3. The other questions raised by this appeal have not been argued in this court and are considered as abandoned.

Judgment affirmed in part; reversed in part.

All the justices concur, except Gunter, and Ingram, JJ., who dissent.