Connell v. Connell

• Decision Date: 26 February 1969
• Docket Number: 2,3,Nos. 1,No. 43917,43917,s. 1
• Citation: 119 Ga.App. 485,167 S.E.2d 686
• Parties: A. J. CONNELL v. Jacquelyn C. CONNELL
• Court: Georgia Court of Appeals

Page 686

167 S.E.2d 686

119 Ga.App. 485

A. J. CONNELL v. Jacquelyn C. CONNELL.

No. 43917.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 26, 1969.

Rehearing Denied March 12 and April 4, 1969.

Certiorari Denied May 22, 1969.

Allgood & Childs, Thomas F. Allgood, Augusta, for appellant

Albert G. Ingram, Augusta, for appellee.

Syllabus Opinion by the Court

WHITMAN, Judge.

This case arises out of an action by Jacquelyne Cook Connell against A. J. Connell to recover on a foreign judgment, as a debt of record, in the Municipal Court of the City of Augusta, Georgia. Defendant's plea to the jurisdiction was overruled. Defendant's responsive pleading, asserting several matters in defense, was stricken, pursuant to motion, as failing to set forth facts sufficient to constitute a defense. Judgment was entered for plaintiff and defendant appeals therefrom.

The marriage of the parties herein was terminated by a final judgment and decree of total divorce of the Domestic Relations Division of the Superior Court of Richmond County, Georgia. The divorce decree awarded the custody of the children to Mrs. Connell, and also provided for alimony and child support.

Mrs. Connell moved to South Carolina with the children and established domicile there. She then filed a petition in the Court of Common Pleas, Aiken County, South Carolina, for a modification of the Georgia divorce decree with respect, among other things, to its child support provisions based on changed conditions, and had the petition, with a summons, served on Mr. Connell in Aiken County, S.C. Mr. Connell filed his 'answer and return', stating therein that he was making a special appearance for the purpose of objecting to the jurisdiction of the court; that the personal service upon him was not legally effective, and, further, that the court had no jurisdiction of the subject matter. He moved the court to dismiss the action agaisnt him. But the court determined, because of other contentions made in the 'answer and return,' that Mr. Connell had answered on the merits, thereby making his appearance a general appearance rather than a special appearance, and thus any right to assert that the court had no jurisdiction over the person had been waived. This determination was upheld on appeal. See Connell v. Connell, 249 S.C. 162, 153 S.E.2d 396.

Thereafter the Court of Common Pleas determined that it was authorized under South Carolina law to modify the provisions of an original alimony decree of another State based on changed financial conditions and entered judgments providing for increased child support payments by Mr. Connell and for the payment of attorney's fees involved in bringing the action. The judgment awarding attorney's fees was made expressly in favor of Mrs. Connell's attorneys. However, such a judgment will be construed as one which the plaintiff may enforce in her own name. Walden v. Walden, 171 Ga. 444, 446, 155 S.E. 919. These judgments were the basis 1. The overruling of Mr. Connell's plea of no jurisdiction of the subject matter in the Municipal Court of Augusta is enumerated as error. It is argued that the action was one involving alimony, child support and other issues strictly within the jurisdiction of the superior courts of this State.

of the action by Mrs. Connell in the Municipal Court of the City of Augusta, the final order in which is the basis for this appeal by Mr. Connell. Held:

The plea was properly overruled. A suit to enforce a decree for alimony of a sister State does not make such suit an alimony case, rather, it is simply an action on a debt of record. McLendon v. McLendon, 192 Ga. 70, 14 S.E.2d 477; Lawrence v. Lawrence, 196 Ga. 204(3), 26 S.E.2d 283; Henderson v. Henderson, 209 Ga. 148(1), 71 S.E.2d 210. The Municipal Court of Augusta therefore properly had jurisdiction. Ga.L.1965, pp. 2144, 2146.

2. Mr. Connell asserted below that the Court of Common Pleas of South Carolina was without jurisdiction over him and that the orders issuing from said court are not enforceable agaisnt him in Georgia. This defense was stricken on motion, which action is enumerated as error.

The record shows that the question of jurisdiction was raised in the South Carolina court by Mr. Connell and was decided adversely to him. That determination is conclusive. Drake v. Drake, 187 Ga. 423(5), 1 S.E.2d 573.

3. It was also asserted in defense that (1) the complaint states no claim for which relief can be granted; (2) that the rights between the parties were previously established in a final judgment and decree of total divorce entered by the Superior Court of Richmond County; (3) that the Court of Common Pleas of South Carolina was without jurisdiction to modify the decree of the Superior Court of Richmond County; and (4) that defendant has at all times complied with the terms and conditions of the Richmond County Superior Court decree. These defenses were stricken on motion, which action is enumerated as error.

The judgment sued on, being properly authenticated and rendered by a court of competent jurisdiction of South Carolina, must be accorded the same full faith and credit in Georgia which it would be accorded in South Carolina. Tompkins v. Cooper, 97 Ga. 631, 25 S.E. 247; Thomas v. Morrisett, 76 Ga. 384.

Most courts, as a general rule, will not entertain applications to modify alimony decrees of foreign courts, requiring instead that such applications be first made to the foreign courts rendering them. 27B C.J.S. Divorce §§ 381, 398(b). In Georgia, compare Dyal v. Dyal, 65 Ga.App. 359, 364, 16 S.E.2d 53, regarding a foreign alimony decree, with Peeples v. Newman, 209 Ga. 53(1), 70 S.E.2d 749, regarding a foreign custody decree. South Carolina was formerly in accord with the general rule. Johnson v. Johnson, 194 S.C. 115, 8 S.E.2d 351; Johnson v. Johnson, 196 S.C. 474, 13 S.E.2d 593, 134 A.L.R. 318. However, our sister State now seems to be of the view, with regard to foreign decrees established there for local enforcement, tht her courts may entertain and determine a plea for modification of the foreign alimony decree on any grounds that could be asserted in the foreign court. See Grossman v. Grossman, 242 S.C. 298, 130 S.E.2d 850. This view is not at odds with Georgia law, as our Supreme Court has held that notwithstanding decrees rendered here affecting the rights of parties while such parties are subject to the jurisdiction of this State, when one of the parties, such as a mother and her minor child, lawfully establishes residence in a foreign State, the foreign State acquires jurisdiction over any new questions concerning the custody, control, and general welfare of the minor child. Stallings v. Bass, 204 Ga. 3, 48 S.E.2d 822; Milner v. Gatlin, 139 Ga. 109(2), 76 S.E. 860. In this case, the South Carolina court has so acted. The judgment sued on was entered 4. It is also contended that the trial court erred in hearing and ruling on plaintiff's motion to strike and dismiss which had not been assigned for hearing as required by law; that the motion was in effect either a motion for summary judgment or a motion for judgment on the pleadings, and that a hearing could not be had before the expiration of 30 days under Code Ann. § 81A-156, nevertheless, the motion was assigned for hearing only 6 days after notice thereof. It appears from the record that both parties appeared before the court and argued the motion on the day assigned without objection as to time. No complaint may now be made as to the timeliness of the hearing. Mathis v. Kimbrell Bros. Tire Service, 117 Ga.App. 399, 402(2), 160 S.E.2d 855.

with jurisdiction over all the parties and is entitled to full faith and credit in Georgia. There was no error in striking the defenses interposed by Mr. Connell in this regard.

Judgment affirmed.

BELL, P.J., JORDAN, P.J., and HALL, EBERHARDT, PANNELL and QUILLIAN, JJ., concur.

FELTON, C.J., and DEEN, J., dissent.

FELTON, Chief Judge (dissenting).

Mrs. Connell sued her ex-husband in South Carolina on a judgment for alimony and child support entered against the exhusband in the Superior Court of Richmond County, Georgia, seeking an increase in the amount of children's support due to the improvement in the defendant's financial condition. The defendant was served with petition and process in South Carolina. He filed a plea to the jurisdiction on two grounds. The first paragraph of this plea reads as follows: 'Your respondent hereby makes a special appearance for the purpose of making an answer and return, objecting to the jurisdiction of this court in this matter, and without waiving the same.' (Emphasis supplied.) He also filed a plea to the merits by amendment. The trial court overruled the plea to the jurisdiction which the appellant appealed to the Supreme Court of South Carolina, which affirmed the trial court. The jurisdiction of the South Carolina court was attacked as to subject matter and person. As I interpret the decision of that court, it held that no valid pleas to the jurisdiction had been filed for the sole reason that the plea to the jurisdiction, a plea to the merits and of res judicata were filed and were of file all at the same time at the time judgment was rendered by the trial court, and that the only way a plea to the jurisdiction could be effective was that it be filed completely by itself and that if it was overruled the court under a numbered Code section could allow time for the filing of a plea on the merits. Connell v. Connell, 249 S.C. 162, 153 S.E.2d 396, supra. The law in this state at the time of the South Carolina decision was to the effect that 'The filing of a plea to the merits where a plea to the jurisdiction had previously been filed does not waive the jurisdiction even though the plea to the merits is not expressly made subject to the plea to the jurisdiction.' Milam v. Terrell, 214 Ga. 199(1), 104 S.E.2d 219. The same rule applies to present law under the Civil Practice Act (Ga...