Connell v. Connell, 23736
| Decision Date | 23 November 1966 |
| Docket Number | No. 23736,23736 |
| Citation | 222 Ga. 765,152 S.E.2d 567 |
| Parties | Jacquelyne Cook CONNELL v. Aticus J. CONNELL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The superior courts retain jurisdiction to enforce provisions of their divorce decrees regarding the custody of minor children, and it was not error to overrule the defendant's demurrers and motion to dismiss.
2. Disobedience of a void judgment cannot constitute contempt of court.
3. The part of the divorce decree ordering that the minor children remain within the jurisdiction of the superior court and that neither party could petition for their removal from said jurisdiction for four years or remove them for no longer than two weeks during each parent's custody period, is void, and it was error to hold the former wife in contempt for violation of such provision.
4. It was not error to deny the defendant mother's prayer for attorneys fees since the statute allowing the former wife attorneys fees does not apply in a case where the former husband seeks to hold the former wife in contempt for violation of the terms of the divorce decree regarding the custody of their minor children.
Albert G. Ingram, Augusta, for appellant.
W. C. Calhoun, G. B. Hester, Augusta, for appellee.
In this appeal Jacquelyne Connell seeks a review of an order adjudging her, on petition of her former husband, A. J. Connell, in contempt of court for her disobedience of a final divorce decree as to the custody of their minor children.
On November 13, 1963, a final decree of divorce was granted in Richmond Superior Court. The agreement of the parties touching the custody, maintenance and support of their minor children was made a part of the decree of the Court. The wife, appellant here, was awarded the custody of the three minor children with right in the father to have their custody for 60 days during the summer months and at specified periods to have the children visit him. The decree further provided that
On November 1, 1965, the father filed his petition praying that the mother be adjudged in contempt of court for failing and refusing to obey the provisions of the decree of November 13, 1963, as to his visitation rights and alleging that she had removed the children beyond the jurisdiction of the court. The petition and order were personally served upon the mother. The mother filed general and special demurrers, a motion to dismiss and her answer. In her response she admitted the children were beyond the jurisdiction of the court, such removal being caused by the father's malicious harassment, and asserted that the courts of South Carolina alone have jurisdiction over her and the children.
After a lengthy hearing, the court entered its order on July 11, 1966, adjudging the mother to be in contempt of court and ordered 'that the Sheriff of Richmond County confine her in the jail of Richmond County until she purges herself of such contempt by returning said minor children, Deborah Connell, Aticus J. Connell, Jr., and Jacquelyne Anna Connell, to Richmond County, Georgia, and the jurisdiction of the court, where they shall remain and complying with each and every provision of said decree, provided however, she shall have until 12 o'clock noon on the 18th day of July to comply with the terms of this order.' On July 18, 1966, the court also denied the mother's prayer for attorneys fees. A supersedeas was granted, and the appeal by the mother enumerates error on these orders.
The several enumerations of error assert that the court erred in (a) overruling the appellants' demurrers and motion to dismiss the contempt petition, (b) finding the mother in contempt of court and (c) refusing to award her attorneys fees.
The main attack on the contempt order is that the court did not have jurisdiction over the mother and the minor children, they having moved, subsequent to the grant of the divorce decree, to the State of South Carolina, and the decree does not contain any express command or prohibition but merely declares the rights of the parties as to the custody of the children. It is therefore concluded that the mother's failure to comply with the...
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