In Harmon v. Harmon (209 Ga. 474-475) the Supreme Court of Georgia, in a divorce proceeding, said: "(a) The essential allegations in a petition for divorce, including jurisdiction, must be established by evidence, and the burden of proving such allegations rests upon the plaintiff.Summary of this case from Mincy v. Mincy
ARGUED NOVEMBER 13, 1952.
DECIDED JANUARY 12, 1953.
Divorce, etc. Before Judge Shaw. Fulton Superior Court. September 9, 1952.
Joseph S. Crespi, for plaintiff in error.
George C. Mitchell, contra.
1. Our Constitution of 1945, by article 6, section 14, paragraph 1, provides that "Divorce cases shall be brought in the county where the defendant resides, if a resident of this state; if the defendant be not a resident of this state, then in the county in which the plaintiff resides, provided, that any person who has been a resident of any United States army post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation." Code (Ann.), § 2-4901. These provisions of the Constitution are mandatory, exhaustive, jurisdiction, and without qualification; hence jurisdiction in a divorce action may not be conferred upon a court in which it is wanting either by the defendant's appearance and pleading or otherwise. Moody v. Moody, 195 Ga. 13 ( 22 S.E.2d 836), and citations.
( a) The essential allegations in a petition for divorce, including jurisdiction, must be established by evidence, and the burden of proving such allegations rests upon the plaintiff. Code, § 30-113; Watts v. Watts, 130 Ga. 683 ( 61 S.E. 593); Dicks v. Dicks, 177 Ga. 379, 382 ( 170 S.E. 145); Bellamy v. Bellamy, 187 Ga. 56, 58 ( 199 S.E. 745); Stewart v. Stewart, 195 Ga. 460 ( 24 S.E.2d 672).
( b) And a divorce granted by a court having no jurisdiction of the subject matter and of the parties is a nullity. Odum v. Odum, 132 Ga. 437, 439 ( 64 S.E. 470); Jones v. Jones, 181 Ga. 747 (4) ( 184 S.E. 271); Johnson v. Johnson, 188 Ga. 800 ( 4 S.E.2d 807).
2. In the instant case, while the petition properly alleges jurisdiction in Fulton County, Georgia, the evidence was insufficient to prove the venue. As to the residence of the defendant, no evidence is found in the record showing or tending to show that he in fact resided in Fulton County, Georgia, when this litigation was instituted; but that he then resided in Wolfe County, Kentucky, as averred in his answer, is not contradicted in any way by the evidence. And as to the residence of the plaintiff, the evidence was amply sufficient to show that she had resided in the State of Georgia for more than six months immediately prior to the date upon which her suit was filed; but proof only of the fact that she then resided at "743 Pulliam Street in the City of Atlanta" was insufficient to show that she resided in Fulton County. We judicially know that the City of Atlanta is in the counties of Fulton and DeKalb (Code, § 38-112; Avera v. State, 25 Ga. App. 276, 103 S.E. 94; Davis v. State, 66 Ga. App. 214, 17 S.E.2d 554); but judicial cognizance of the location of its streets is not so taken. Carter v. State, 48 Ga. 43; Alexander v. State, 105 Ga. 834 ( 31 S.E. 754); Kolman v. State, 124 Ga. 63 ( 52 S.E. 82); Pearson v. Horne, 139 Ga. 453 ( 77 S.E. 387); Causey v. Swift Co., 57 Ga. App. 604, 610 ( 196 S.E. 228). So, since the essential requirement of jurisdiction was not proven, the motion to vacate and set aside the verdict and judgment granting a divorce, based as it was upon such lack of evidence as a ground therefor, should have been granted; it was reversible error not to do so.
3. While the validity of the decree, insofar as it awards permanent alimony to the plaintiff for the support of her minor children, is not specifically questioned upon the ground that it has no support in the verdict, yet, since no valid divorce was granted in the cause and the prayer for alimony was incidental to the suit for divorce, the decree awarding alimony is without legal force and effect; thus being void, it will be set aside without prejudice to the plaintiff and the minor children. Code, § 30-210; Black v. Black, 149 Ga. 506 ( 101 S.E. 182); Mullally v. Mullally, 199 Ga. 708 (3) ( 35 S.E.2d 199); Davis v. Davis, 206 Ga. 559 (3) ( 57 S.E.2d 673), and citations.
4. Under Code § 30-127, the court can make a final disposition of the minor children of the parties only when a divorce is granted. Keppel v. Keppel, 92 Ga. 506 ( 17 S.E. 976). This power is incident to the divorce proceeding, and is exercisable only when a valid divorce is granted between the parties. Brightwell v. Brightwell, 161 Ga. 89 (2) ( 129 S.E. 658); Black v. Black, 165 Ga. 243 ( 140 S.E. 364). In this case, since no valid divorce was granted for the reason previously stated, the court was without power to fix custody and control of the minor children of the parties, and the motion to set aside the order undertaking to do so should have been granted.
5. For reasons stated in the preceding notes, the judgment complained of is erroneous.
Judgment reversed. All the Justices concur, except Atkinson, P. J., not participating.
No. 18019. ARGUED NOVEMBER 13, 1952 — DECIDED JANUARY 12, 1953.
On July 2, 1951, Mrs. Mabel Mae Harmon brought a suit in the Superior Court of Fulton County, Georgia, against Oscar Earl Harmon for divorce and alimony upon the grounds of cruel treatment and wilful desertion for a term of more than one year. She also prayed for the custody and control of her two minor sons, namely, Mancy Harmon, age 17, and Offie Harmon, age 15, alleging in her petition that she was the proper parent to have custody and control of them, and that they were, at that time, in the jurisdiction of the court. Respecting venue, she alleged that she had been a resident of the State of Georgia, and of Fulton County, for a period of more than six months immediately preceding the date upon which her petition was filed, and that her husband was likewise a resident of Fulton County, Georgia, residing at 823 Washington Street in the City of Atlanta. The defendant, who was served personally, filed an answer in which he denied the pleader's allegation concerning his residence, and averred that he was, when sued, a resident of Wolfe County, Kentucky, being only a sojourner in the State of Georgia when served with a copy of the petition and process. By his answer, he also denied the allegations of cruel treatment and wilful desertion, and averred that his two minor sons had been awarded to him by a court of competent jurisdiction in the State of Kentucky on April 13, 1948, by a judgment presently of full force and effect, and that the Superior Court of Fulton County, Georgia, had no jurisdiction of them, since they were only temporarily in the State of Georgia. The verdict was: "The within and foregoing case having been presented to the jury, after presentation of evidence, as provided by law, it is the verdict of the jury that a total divorce be granted, that is to say a divorce a vinculo matrimonii, between the parties to the above cause, upon legal principles. The plaintiff herein shall have to right to remarry." A decree was entered dissolving the marriage and awarding to the plaintiff permanent alimony for the support of the minor children. It was also decreed "that the permanent custody and control of the two minor children, Mancy and Offie Harmon, is awarded jointly to plaintiff and defendant with the right of the two children to select their guardian." The exception is to a judgment denying a motion, timely made by the defendant, to vacate and set aside the verdict and decree granting a total divorce and awarding permanent alimony, upon the ground, among others, that the verdict was contrary to the evidence and without evidence to support it; and upon the ground that the decree, insofar as it undertook to fix custody and control of the minor children of the parties, was void because jurisdiction of the court over the children was lacking.
Concerning the plaintiff's residence, the evidence shows that she had resided in the State of Georgia continuously for 28 years immediately prior to the date upon which her suit was filed, and at 743 Pulliam Street in the City of Atlanta since January 25, 1949. As to the defendant, except as to those allegations which the pleadings contain, the record is completely silent as to the location of his residence since April 14, 1949.