Opinion
21272.
ARGUED JUNE 12, 1961.
DECIDED JULY 14, 1961.
Alimony, etc. Chatham Superior Court. Before Judge Heery.
Joseph B. Bergen, for plaintiff in error.
Lewis, Wylly Javetz, contra.
1. Where parties to a judicial proceeding enter into an agreement settling the questions involved, which agreement is signed in open court by the attorneys and the trial judge, the parties consenting thereto will not be heard to question its validity on the ground that it did not contain formal words of adjudication such as "considered, ordered and adjudged," or "decreed," or other formal words indicating that it was the judgment of the court.
2. Where temporary custody of a minor child has been awarded to the husband in a custody and alimony proceeding brought by the wife, an entry of dismissal of the original petition by the wife was ineffectual to dismiss the proceeding.
ARGUED JUNE 12, 1961 — DECIDED JULY 14, 1961.
Mrs. Ruth S. Grayson, plaintiff in error, field her petition in the Superior Court of Chatham County against her husband, William L. Grayson, praying for temporary and permanent alimony, custody of their children, and other relief. A rule nisi was issued pursuant to prayers contained in the petition, and at the interlocutory hearing held pursuant thereto on March 13, 1961, the court after hearing some evidence adjourned. Subsequently to the adjournment, the attorneys, on behalf of the parties, entered into an agreement which was signed by the trial judge on March 15, 1961. This paper provided for temporary alimony for the wife and, among other things, provided that the husband should have temporary custody of their son and that the wife should have temporary custody of their daughter.
Subsequently counsel for the plaintiff in error entered a dismissal of the first case, and, on April 13, 1961, brought a new suit for temporary and permanent alimony, child custody and support. The second suit also contained prayers for a rule nisi requiring the defendant in error to appear and show cause why the prayers of the petition should not be granted. A motion was filed by the defendant in error to dismiss the rule nisi issued by the court pursuant to prayers of the petition, on the ground that the agreement entered into between the attorneys, on behalf of the parties, in the first suit was a valid interlocutory order, of full force and effect, and binding upon both parties.
The motion to dismiss the rule nisi was sustained by the trial court on May 1, 1961, in the following language: "The plaintiff in any case in any court may dismiss his action either in vacation or term time if he shall not thereby prejudice any rights of the defendant. In this case the defendant's rights would be prejudiced, for he was by order of this court on the 15th day of March, 1961, awarded temporary custody of one of the children, William L. Grayson, III. The motion to dismiss the rule nisi is hereby sustained."
It is to this order that the plaintiff in error now excepts.
1. The question presented by the plaintiff in error, that the order was not in such form as to constitute a valid judgment, is not material to a determination of the issue before us, because she is estopped by her conduct to question its validity.
"Parties to stipulations and agreements entered into in the course of judicial proceedings are estopped to take positions inconsistent therewith, in the absence of fraud or mistake." 31 C.J.S. 384, § 120. See also Mehrtens v. Knight, 29 Ga. App. 390 ( 115 S.E. 506).
"No litigant will be heard to complain of an order or judgment of the court which he procures or assists in procuring, unless it be made plainly to appear that the consent of the party seeking to complain was obtained by fraud or mistake." Don v. Don, 162 Ga. 240 (1) ( 133 S.E. 242). See also Jones v. Jones, 209 Ga. 861 (2) ( 76 S.E.2d 801).
Where, as here, the parties reached an agreement on all questions at issue, which agreement was reduced to writing, was styled an "order," and recited that it was signed in open court by the judge, and was agreed to by counsel of the parties, and was unquestionably considered by all parties thereto, as well as the judge, to be an order of the court settling the questions involved, the parties consenting thereto will not be heard to question its validity on the ground that it did not contain formal words of adjudication such as "considered, ordered and adjudged" or "decreed," or other formal words indicating that it was the judgment of the court.
2. The plaintiff in error contends that she was entitled to dismiss her first suit and that such dismissal would not prejudice the defendant in error since he had failed to request affirmative relief. This is the case, so the plaintiff in error contends, even though the defendant in error was awarded temporary custody of one of the children by the agreement referred to in division one.
In Breeden v. Breeden, 202 Ga. 740 (5) ( 44 S.E.2d 667), this court held that "where . . . the wife obtained an award of alimony for support of the child and the temporary custody of it by an order wherein jurisdiction was retained for further disposition of the child, and subsequently the court, on application of the father, entered an order awarding the custody of the child to him `until the final determination of the case . . .' an entry by counsel, at the direction of the wife, of a dismissal on the original petition was ineffectual after the entry of judgment awarding the custody of the child to the father until a final hearing, and jurisdiction of the subject-matter and of the parties remained in the superior court. Adams v. Carnes, 111 Ga. 505, 507 ( 36 S.E. 587); Black v. Black, 165 Ga. 243 (2) ( 140 S.E. 364)."
We consider the ruling in the Breeden case to be sound and apply it to the case under consideration. Since the rights of the defendant in error regarding child custody had been temporarily adjudicated, a subsequent dismissal of the first suit by the plaintiff in error would have prejudiced those rights.
Consequently the trial court did not err in sustaining the motion of the defendant in error to dismiss the motion of the plaintiff in error for a second interlocutory hearing on the question of temporary alimony and child custody.
Judgment affirmed. All the Justice concur.