Opinion
19291.
SUBMITTED APRIL 9, 1956.
DECIDED MAY 14, 1956.
Divorce, etc. Before Judge Hicks. Floyd Superior Court. February 4, 1956.
Maddox Maddox, for plaintiff in error.
Fullbright Duffey, Harl C. Duffey, Jr., contra.
An award of custody of a minor child in a divorce decree is a final adjudication of the right of custody on the facts then existing, and any attempt on the part of the trial court to retain jurisdiction of the case, and make the award only temporary, is ineffective. Any further proceeding relating to the custody of the child must be brought in the county of the residence of the person to whom custody has been awarded.
SUBMITTED APRIL 9, 1956 — DECIDED MAY 14, 1956.
On October 17, 1953, a decree of divorce was entered in the Superior Court of Floyd County in the case of Mrs. Mildred Steadham Anthony against John Horace Anthony. The decree incorporated an agreement made by the parties in regard to custody of the minor children and alimony, each party retaining the custody of one of the two minor children, and the wife being awarded alimony for herself and the minor child in her custody. The decree recited: "However, the court specifically retains jurisdiction of said children and the right to control the future possession and control of said children, . . and said children shall not be taken out of the jurisdiction of this court without leave of the court so to do."
On September 30, 1955, John Horace Anthony filed a petition, styled in the same cause as the divorce action, in which he prayed that "the order and judgment of the court . . . be amended" to give custody to him of the child whose custody had been given to the mother. There is no allegation in the petition as to the residence of the mother.
Mrs. Anthony filed a sworn plea to the jurisdiction, in which she alleged that she does not reside in Floyd County, but is a resident of Fulton County, and the Superior Court of Fulton County has jurisdiction of the case. She filed her general and special demurrers on the grounds, among others, that it is not alleged that she is a resident of Floyd County; that the motion sets forth no grounds whereby the decree should be modified; that the term of the court having expired at which the final decree was entered in the divorce case, the court is without authority to change and modify the decree upon a motion filed in the cause.
The trial judge heard no evidence on the question of jurisdiction, but overruled the plea of the respondent, and overruled her general and special demurrers. The bill of exceptions assigns error on these rulings.
This court has repeatedly held that the judgment of a trial judge awarding custody of minor children in a divorce action is a final adjudication of the right of custody on the facts then existing, and any attempt by the trial judge to retain jurisdiction, by recitations to that effect in the decree, is wholly ineffective. Burton v. Furcron, 207 Ga. 637 ( 63 S.E.2d 650); Hanson v. Stegall, 208 Ga. 403 ( 67 S.E.2d 109); Stout v. Pate, 209 Ga. 786 ( 75 S.E.2d 748); Barrentine v. Barrentine, 210 Ga. 749 ( 82 S.E.2d 857); McAfee v. Martin, 211 Ga. 14 ( 83 S.E.2d 605); Broome v. Broome, 212 Ga. 132 ( 91 S.E.2d 18). The inclusion in the order of a provision that the minor child must not be taken from the jurisdiction of the court constitutes an attempt on the part of the trial court to retain exclusive jurisdiction of the case, which can not be done. Gibbs v. North, 211 Ga. 231 ( 84 S.E.2d 833).
"An award of custody in divorce proceedings, based upon an agreement of the parties providing that the trial court should retain jurisdiction of custody of the children, is a final judgment on the facts then existing, and further proceedings relating to such question against the person awarded custody by the divorce court, must be brought in the county of such person's residence." Goodloe v. Goodloe, 211 Ga. 894 ( 89 S.E.2d 654).
It was error to overrule the demurrer based on the failure of the petition to allege jurisdiction of the respondent.
Judgment reversed. All the Justices concur.