In Tate v. Tate, 220 Ga. 393, 396 (139 S.E.2d 297), this court made the following pronouncement: "The husband, having filed an answer to the wife's suit in Upson County, and by such answer having made a general appearance, was subject to the jurisdiction of the court and could properly be bound by the judgment of the court favorable to the wife on all issues sustained by the evidence."Summary of this case from Bass v. Bass
ARGUED OCTOBER 12, 1964.
DECIDED NOVEMBER 5, 1964.
Divorce. Upson Superior Court. Before Judge Brown from Flint Circuit.
Atkins Atkins, Ben S. Atkins, Alton T. Milam, Dorothy D. Atkins, for plaintiff in error.
Adams Barfield, Ronald Barfield, contra.
1. The motion to dismiss the writ of error is denied.
2. The divorce petition of the wife alleged facts to establish the jurisdiction of the Superior Court of Upson County.
3. The husband, having been served personally and having filed an answer to the petition, was subject to the jurisdiction of the court. The court could properly inquire into his right to maintain a suit for divorce in Florida which was filed subsequently to the answer filed by him to the wife's petition for divorce.
ARGUED OCTOBER 12, 1964 — DECIDED NOVEMBER 5, 1964.
Joyce Greene Tate filed her petition for divorce in the Superior Court of Upson County against her husband, Wayland Lloyd Tate, alleging cruel treatment. The prayers of the petition, as amended, were: for process; for total divorce; that she be awarded temporary and permanent custody of the minor child of the parties; for temporary and permanent alimony; for attorney's fees; and for other relief. Process was issued on February 5, 1964, and the defendant was personally served in Upson County on February 7, 1964, by the sheriff. The defendant filed his answer on March 5, 1964, wherein he denied the material allegations of the petition. On May 18, 1964, the judge of the superior court issued a rule nisi requiring the defendant to show cause why the prayers of the petition relating to the custody of the child, temporary alimony, and attorney's fees should not be granted.
On June 19, 1964, the plaintiff amended her petition, alleging that her husband had filed a suit for divorce in the Circuit Court of Orange County, Florida. The copy of the divorce action filed by the husband in the State of Florida, attached to the amendment, does not show the date that it was filed, but it was verified on May 27, 1964. The plaintiff sought to enjoin her husband from prosecuting the divorce action filed by him in the State of Florida. On the same date the amendment was filed, the judge issued a rule nisi directing the defendant to show cause why he should not be enjoined from prosecuting his petition for divorce in the State of Florida.
On June 30, 1964, counsel for the defendant filed a written motion in the nature of a general demurrer to dismiss the petition against him in Upson County, Georgia, it being contended that the plaintiff's pleadings show that the defendant is a legal resident of the State of Florida. On the same date the Honorable Thomas J. Brown (sitting for the Honorable John H. McGehee, who had disqualified himself because of relationship by marriage to the plaintiff within the prohibited degree) entered orders denying the motion to dismiss, enjoining the defendant from prosecuting his complaint for divorce filed in the Circuit Court of Orange County, Florida, and awarding the wife temporary alimony and attorney's fees, and custody of the child. In his bill of exceptions the defendant excepts to these orders.
The plaintiff (defendant in error in this court) has filed a motion to dismiss the bill of exceptions upon the ground that the certificate of the trial judge does not unqualifiedly certify that the bill of exceptions is true.
1. The motion to dismiss the writ of error is denied. The judge's certificate is in part as follows: "I do hereby certify that the foregoing bill of exceptions is true and specifies all of the record material to a clear understanding of the errors complained of; excepting the note below [interlined] and the Clerk of the Superior Court of Upson County, etc." After certifying the bill of exceptions the "note below" is as follows: "Further, that counsel for plaintiff stated in his place at the hearing on June 30, 1964 that the allegation, `He further fails utterly to inform the Florida Court that the parties have a minor child' contained in his amendment was erroneous." Clearly this was intended by the trial judge as an addition to the record, and was not a qualification as to the truth of the recitals in the bill of exceptions.
2. In paragraph 1 of her petition the wife alleged: "Petitioner is and has been a resident of Upson County, Georgia, for more than six months next preceding the filing of this petition." In paragraph 2 she alleged that the husband is a resident of the State of Florida. Residence in a county for six months is all that is required to give the court jurisdiction of a plaintiff's petition for divorce. Ga. L. 1958, p. 385 ( Code Ann. § 30-107). "One filing a petition for divorce must allege and prove that he has been a bona fide resident of the State for the length of time required by law." Dicks v. Dicks, 177 Ga. 379, 382 ( 170 S.E. 245); Griffin v. Griffin, 130 Ga. 527, 532 ( 61 S.E. 16, 16 LRA (NS) 937, 14 AC 866); Owens v. Owens, 189 Ga. 338 ( 5 S.E.2d 883); Mullally v. Mullally, 199 Ga. 708 ( 35 S.E.2d 199); Mullins v. Mullins, 219 Ga. 816 (1) ( 136 S.E.2d 379).
Under the applicable rules of law the wife's petition was sufficient to allege jurisdiction of her divorce action in Upson County, Georgia. The husband recites in his bill of exceptions that: "None of the evidence adduced at the hearing is material to elucidate the errors complained of." No brief of the evidence was brought to this court. Consequently no assignment of error requiring a consideration of the evidence can invoke any ruling by this court.
3. The husband, having filed an answer to the wife's suit in Upson County, and by such answer having made a general appearance, was subject to the jurisdiction of the court and could properly be bound by the judgment of the court favorable to the wife on all issues sustained by the evidence. Miller v. Miller, 216 Ga. 535 ( 118 S.E.2d 85). Whether or not the evidence authorized the trial judge to enjoin the prosecution by the husband of his Florida divorce action is not before this court for review, since counsel elected not to bring to this court any brief of the evidence.
Judgment affirmed. All the Justices concur.