Summary
In Tallant v. Tallant, 227 Ga. 26 (2) (178 S.E.2d 887) (1970), the Supreme Court held the transfer of the determination of child custody from the superior court to the juvenile court to be authorized for the purpose of investigation and determination.
Summary of this case from In the Matter of J. S. SOpinion
26082.
ARGUED OCTOBER 13, 1970.
DECIDED DECEMBER 3, 1970.
Divorce. Bibb Superior Court. Before Judge Culpepper.
Adams, O'Neal, Steele, Thornton, Hemingway McKenney, Kice H. Stone, for appellant.
Mullis Brown, Gerald S. Mullis, for appellee.
1. Where the record does not show on its face a lack of jurisdiction over the appellant's person, improper venue, insufficiency of process, or insufficiency of service of process, the trial court did not err in refusing to set aside the decree on jurisdictional grounds.
2. Where the superior court transferred the issue of child custody in this divorce case to the juvenile court for investigation and determination, the latter court had exclusive jurisdiction of that issue to make a final judgment thereon and the superior court erred in entering a custody order after the juvenile court's improper transferral of the issue back to it.
ARGUED OCTOBER 13, 1970 — DECIDED DECEMBER 3, 1970.
On October 31, 1968, the appellee husband filed a complaint for divorce and custody of named minor children against the appellant wife. The complaint, together with a supporting affidavit, alleged that the defendant was concealing herself to avoid the service of the summons in this action; that, after exercising due diligence, the plaintiff could not find the defendant within the State; and that the defendant had removed herself beyond the limits of the State and was presently residing at the Lucerne Motel, Las Vegas, Nevada. The trial court entered an order for service by publication upon the appellant and the deputy clerk of the court subsequently entered a certificate of mailing a copy of the summons and complaint to appellant at the address specified in the complaint. On the same date that the order for service was entered, the court entered an order referring the question of the children's custody to the Juvenile Court of Bibb County "for investigation, trial and determination of all issues of fact and questions of law." On November 4, 1968, appellee amended his complaint, alleging substantially as follows: That defendant had filed a divorce action against plaintiff in Bibb Superior Court on July 9, 1968; that, after defendant found out about plaintiff's investigation of defendant's activities preparatory to defending defendant's action, she dismissed her divorce action, took the said minor children with her and concealed herself and the children in the aforesaid Las Vegas Motel, in an apparent attempt to obtain a "quickie" divorce and secure the custody of the children; that the plaintiff located the defendant with considerable expense and took physical custody of the children and returned them to Georgia in order to restore jurisdiction to the Bibb County courts; that, since the filing of the present action and after the plaintiff took possession of the children, the defendant had flown from Las Vegas to Columbus, Georgia, where, to the best of plaintiff's information and belief, she was then residing or temporarily sojourning, at a specific address; that the plaintiff believes that the defendant is now scheming to abduct the children again from his custody and possibly flee to parts unknown; that the defendant had become irrational, threatening to take her own life, etc., and was unfit to have custody of the children. The plaintiff prayed that service be had on the defendant at the specified Columbus address. The record contains certifications of service by mail and by publication, as were prayed for. On December 11, 1968, appellant filed a counterclaim and an answer attacking the service, jurisdiction and venue of the action. On January 30, 1969, the court entered an order perfecting service. On the same date appellant's counterclaim and all other defenses in the case were voluntarily dismissed. On January 31, 1969, pursuant to appellee's motion, the juvenile court entered an order transferring the question of child custody back to the superior court. On the same date a final judgment and decree of divorce, awarding custody of the parties' children to appellee, was entered by the superior court. On June 5, 1970, the appellant filed a motion to set aside the divorce and custody decree on the ground of lack of jurisdiction. The motion alleged that the appellant had remarried subsequent to said decree. Following a hearing, the court entered an order on July 1, 1970, denying appellant's motion, from which judgment she appeals. This judgment recited that evidence had been presented by both parties. There is in the record no transcript or brief of this evidence approved by the court or brief of the evidence agreed to by the parties.
1. The allegations of the complaint, together with the attached affidavit, were sufficient to authorize the trial judge's grant of the order that the service be made by the publication of summons, as authorized by the provisions of Code Ann. § 81A-104 (e) (1) (i) (Ga. L. 1966, pp. 609, 610; as amended, Ga. L. 1969, p. 487). It appears that the appellee was diligent in amending his prayer for process when he was able to discover appellant's whereabouts and that service had been perfected to the satisfaction of the court before the final decree was entered. Appellee alleges that appellant was either "residing or temporarily sojourning" in Columbus and such uncertainty is explainable by the fact that, within a short period of time, appellant had been in their home in Macon, then gone to Las Vegas, then to Columbus. The record, therefore, does not show on its face that the trial court was without jurisdiction. The court did not err in refusing to set aside the divorce decree on jurisdictional grounds for the further reason that there is no record in this court of the evidence adduced on the final hearing. In such case it will be conclusively presumed that the court had jurisdiction of the person of the appellant. Enumerated error 1 is without merit.
2. Under the provisions of Code Ann. § 24-2409 (2) (Ga. L. 1951, pp. 291, 298; as amended, Ga. L. 1968, pp. 1013, 1021), the Bibb Superior Court was authorized to transfer the question of the determination of custody of the minor children to the Juvenile Court of Bibb County for the purpose of either (1) "investigation and report back to the superior court," or (2) "investigation and determination." (Emphasis supplied.) Since the trial court's order referred this issue "for investigation, trial and determination of all issues of fact and questions of law" (emphasis supplied), it effectively surrendered jurisdiction over such issue to the juvenile court for that court's final determination. The juvenile court, therefore, erred in transferring the issue back to the superior court, rather than deciding the issue. The fact that the appellant's defensive pleadings had been voluntarily dismissed in the interim did not necessarily make the issue of custody moot and the juvenile court must "proceed to handle the matter in the same manner as though the action originated under this Chapter, in compliance with the order of the superior court," i.e., enter a final judgment therein. Code Ann. § 24-2409 (2), supra; Code Ann. § 24-2408 (5) (Ga. L. 1951, pp. 291, 297; as amended, Ga. L. 1968, pp. 1013, 1019); Slater v. Slater, 216 Ga. 242 ( 115 S.E.2d 353). The superior court, therefore, was wholly without jurisdiction to enter any custody order in the case, and the court erred in entering such order as a part of its final decree. Enumerated error 2 is meritorious. In view of the above holding, we need not rule on the issue of the certainty of the custody order entered by the superior court, which is raised by enumerated error 3.
Judgment affirmed in part; reversed in part. All the Justices concur.