Hackney v. Tench

• Decision Date: 10 November 1960
• Docket Number: No. 20985,20985
• Citation: 216 Ga. 483,117 S.E.2d 453
• Parties: Eunice Winters HACKNEY v. Betty Carlan TENCH et al.
• Court: Georgia Supreme Court

Page 453

117 S.E.2d 453

216 Ga. 483

Eunice Winters HACKNEY v. Betty Carlan TENCH et al.

No. 20985.

Supreme Court of Georgia.

Nov. 10, 1960.

Rehearing Denied Nov. 22, 1960.

James R. Venable, Essley B. Burdine, Margaret Hopkins, Atlanta, for plaintiff in error.

John E. Feagin, Atlanta, for defendant in error.

Syllabus Opinion by the Court

QUILLIAN, Justice.

By a written agreement between a husband and his wife, in contemplation of their divorce pending in the Superior Court of Fulton, County, their two minor children, of the ages of three and five years, were to be placed in the permanent custody of their paternal aunt and her husband. This agreement was incorporated in and made a part of the divorce decree entered on February 8, 1955; but, on the mother's petition, filed in the same court on December 14, 1958, in which it was alleged that the former husband and the paternal aunt and her husband had secretly conspired to defraud her of the custody of her children and had fraudulently induced her to sign the custody agreement and such fraud was not discoverable by any degree of diligence on her part until it was revealed in a proceeding for contempt brought against her former husband by the paternal aunt and her husband on July 25, 1958, that part of the divorce decree purporting to award custody to the paternal aunt and her husband was set aside for fraud in the procurement of the custody agreement. In this proceeding to set aside the custody award it appeared that the former husband, as the defendant, and the paternal aunt and her husband, named as parties at interest, were residents of DeKalb County, and each was personally served by a deputy sheriff of that county with a copy of the mother's petition and a rule nisi. The paternal aunt and her husband made special appearances to plead the court's lack of jurisdiction, but also entered pleas of the statute of limitations. The former husband appeared and consented to the judgment setting aside the custody award. In its order, which recites each of the foregoing facts, the trial court stated: 'The court is informed that said children are presently residents of DeKalb County, Georgia, and therefore makes no disposition as to their custody.' To this judgment, entered on November 20, 1959, no exception was taken. On September 12, 1959, the father, in the form of an affidavit, expressly relinquished and renounced his parental rights in the children to the mother, and consented to their adoption by her present husband. On the mother's petition for habeas corpus, in two counts, brought, on March 23, 1960, in the Superior Court of DeKalb County, against the paternal aunt and her husband, the trial court entered an order, the essential provisions of which are these: 'After considering the pleadings and the stipulations of fact and documentary evidence, and hearing argument of counsel, the court is of the opinion that the decree entered in Fulton Superior Court [the decree of November 29, 1959] * * * is not binding upon the defendants, they not being parties thereto. * * * The court therefore finds, as to Count One * * * that the detention of plaintiff's children * * * by the defendants is not illegal; and the custody of said children is ordered continued in the defendants. As to Count Two * * * the court is of the opinion that the proposed removal of said children [by the defendants] to the State of Alaska * * * for the term of the military duty of the defendant Linton Lamar Tench, in that area [three years] does not constitute such a change of condition as to warrant a change of custody to the plaintiff; nor does the alleged change of status of the parties by virtue of the Fulton County decree [of November 20, 1959] * * * constitute such a change of condition, in view of the fact that the defendants were not parties to the Fulton County decree. It does appear, however, that such removal will seriously impair, and as a practical matter almost eliminate, the visitation rights of plaintiff with her children as granted by order of this court of January 6, 1959 [in a habeas corpus proceeding fixing visitation rights of the mother], the distance and expense rendering such visits impracticable, if not prohibitive * * *. The court finds that, to this extent, there does exist a change of condition sufficient to warrant the superseding of the order of January 6, 1959, with a new order revising the visitation rights of the plaintiff. It is therefore ordered, as to Count Two * * * that the custody of said children be continued in the defendants, but that the plaintiff shall have custody of said children from July 1st through August 31 of each year, beginning July 1, 1960, provided she arranges transportation to and from Georgia, and pays the expenses thereof. * * * The court enters this order without specifically passing upon the defendants' plea of res judicata or demurrers, the court being of the opinion that the controlling question as to Count One * * * is the validity of the order of Fulton Superior Court of November 20, 1959. This May 6, 1960.' Error is assigned on this judgment for reasons enumerated in the writ of error. Held:

1. 'Courts of law have jurisdiction to set aside their own judgments upon petition with rule nisi or process attached and filed after the term at which the judgment was rendered upon the ground that such judgment was procured by fraud or other irregularity that renders it voidable. Union Compress Co. v. A. Leffler & Sons, 122 Ga. 640, 50 S.E. 483; Davis v. Albritton, 127 Ga. 517, 56 S.E. 514, 8 L.R.A.,N.S., 820, 119 Am.St.Rep. 352; Methodist Episcopal Church, South v. Decell, 187 Ga. 526, 1 S.E.2d 432; Wallace v. Wallace, 213 Ga. 96, 97 S.E.2d 155; Mobley v. Mobley, 9 Ga. 247(5...