Blalock v. Blalock, 37130
| Decision Date | 30 April 1981 |
| Docket Number | No. 37130,37130 |
| Citation | 247 Ga. 548,277 S.E.2d 655 |
| Parties | BLALOCK v. BLALOCK. |
| Court | Georgia Supreme Court |
James E. McDonald, Jr., Turnage, Leavell & McDonald, P.C., Athens, for Barbara Keil Blalock.
Fred W. Minter, Decatur, for David Michael Blalock.
The parties in this action were divorced in DeKalb County in July, 1974. The wife is now a resident of Charleston, South Carolina. The husband has remarried and resides in Madison County, Georgia. By agreement between the parties, incorporated into the divorce decree, custody of the couple's minor child was given to the wife with "reasonable rights of visitation" granted to the husband "at such time and place as the parties may agree." The agreement provided that the husband would be entitled to at least two weeks visitation with his son in the summer months, but left the dates to the determination of the parties.
In July, 1980 the wife filed a contempt action in DeKalb County against the husband for failure to return the child to her following visitation. The husband answered that the wife had asked him to care for the child because she could no longer control him, that the child's problems had subsided while in the husband's care, and that continued "visitation" with the husband would be in the best interest of the child. The husband also filed a motion for modification of visitation rights, requesting that the child be allowed "to visit (with him) during the school term and attend school" and "to visit with (the husband) at other reasonable times than the school term."
At the hearing on the contempt action, evidence was presented which showed that, prior to the visit with the husband out of which this proceeding arose, the eight-year-old child had performed poorly in school and had been under psychiatric care for emotional problems. The child's psychiatrist recommended to the wife that the child be permitted to spend more time with his father. On April 19, 1980 the wife requested that the husband take the child for an extended visit. The parties disagree about the length of time that the wife asked the husband to keep the child. When the husband refused the wife's request to return the child to her, she initiated this contempt proceeding. The evidence indicated that the child has made considerable progress academically during his visit with his father. After speaking at length with the child the trial court entered an order which denied the wife's application for attachment for contempt. The order further stated "(the husband's) motion for modification of visitation rights and custody is granted." The order then purported to grant visitation rights to the wife from August 13, 1980 to August 21, 1980, as well as allowing her to visit with the child during the Thanksgiving holidays of even years and during the Christmas holidays of odd years. The order also states that the wife has visitation rights for two weeks during each summer, provided she gives 30 days notice to the husband.
We granted the wife's application to appeal. She enumerates two errors made by the trial court.
(1) The wife first argues that the trial court erred in denying her motion to dismiss husband's motion for modification of visitation rights, as the husband's motion is a counterclaim, and under Steelman v. Fowler, 234 Ga. 706, 217 S.E.2d 285 (1975), she is exempt from service of process in another suit while in attendance upon the contempt proceeding.
In Steelman, the wife, a non-resident, filed a contempt action against her former husband in Fulton County for failure to allow visitation privileges. The former husband filed a complaint for change in condition with respect to visitation privileges. While in the judge's chambers awaiting appearance on her motion in the contempt action, the wife was served with process in the husband's suit. This court held that the trial court erred in failing to grant the wife's motion to quash the change of custody action because of insufficiency of service of process. Noting that "(a) petition for contempt and a petition for change of custody are separate proceedings" we stated "(t) he law seems to be that a suitor or a witness in attendance upon the trial of any case in court, is privileged from arrest under any civil process, and is exempted from the service of any writ of summons upon him or them while in attendance upon such court or in going to or returning therefrom." Steelman at 707, 217 S.E.2d 285.
Prior to 1976 a motion for modification of visitation rights was also a proceeding separate from a contempt action. A motion for modification of visitation rights could not be made in a contempt proceeding. Rather, modification of visitation rights...
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Carden v. Carden, A03A1903.
...34(2), 195 S.E.2d 440. OCGA § 19-9-1(b) permits a counterclaim for modification of visitation, but not custody. See Blalock v. Blalock, 247 Ga. 548, 277 S.E.2d 655 (1981); Sampson v. Sampson, 240 Ga. 118, 239 S.E.2d 519 (1977). The rule in Davis does not invalidate a counterclaim to a petit......
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...495, 497(2), 397 S.E.2d 289 (1990). 4. Harper v. Smith, 261 Ga. 286, 404 S.E.2d 120 (1991). 5. OCGA § 19-9-1(b); Blalock v. Blalock, 247 Ga. 548, 550(2), 277 S.E.2d 655 (1981); Sampson v. Sampson, 240 Ga. 118, 119, 239 S.E.2d 519 (1977) (visitation rights may be altered in a contempt procee......
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