Heard v. Vegas
| Decision Date | 04 March 1975 |
| Docket Number | No. 29630,29630 |
| Citation | 213 S.E.2d 873,233 Ga. 911 |
| Parties | Billy Franklin HEARD v. Ana Maria VEGAS. |
| Court | Georgia Supreme Court |
Custer, Smith & Manning, Lawrence B. Custer, W. Sammy Garner, III, Marietta, for appellant.
Richard H. Still, Jr., Fluornoy & Still, Marietta, for appellee.
Syllabus Opinion by the Court
This action arose by petition filed by Ana Maria Vegas in the Cobb Superior Court against Frank Heard, her former husband, seeking an upward revision in child support payments and the rescission of an agreement incorporated into the divorce decree prohibiting Mrs. Vegas and their minor child from living outside the State of Georgia. The husband answered that there had not been a substantial change in his financial situation so as to warrant an increase in child support payments, that he opposed the modification of the judgment restricting his former wife and child to living in the state. By way of a cross claim he requested that permanent custody of the child be vested in him, and in the alternative that other requests as to visitation rights be granted.
On August 27, 1974, the trial court ordered as follows: '(1) That the prayers of plaintiff for modification of child support from defendant are denied; (2) that change of custody from petitioner to defendant as prayed in his cross claim is denied; (3) that the prayers of plaintiff for modification of said final decree to permit removal from this State are granted as the same contained in said agreement and divorce decree are hereby decreed void . . .'
1. The main issue presented in this appeal is whether a judgment incorporating an agreement between the parties to the effect that the parent awarded custody will live in the State of Georgia, is void as to that provision.
In King v. King, 202 Ga. 838(2), 44 S.E.2d 791, it was said that it is 'against the policy of the law to permit the removal of a child from the jurisdiction of the State unless its welfare would be better served thereby, although such removal may be permitted by the court in its discretion, in a proper case.'
This language in King, supra, was held not to be binding in Connell v. Connell, 222 Ga. 765(3), 152 S.E.2d 567, where we held that 'The part of the divorce decree ordering that the minor children remain within the jurisdiction of the superior court . . . is void, an it was error to hold the former wife in contempt for violation of such provision.' In Connell, supra, we relied on the decision in Evans v. Allen, 212 Ga. 193(1), 91 S.E.2d 518, where we held a provision in a divorce decree 'prohibiting the removal of the child beyond the jurisdiction of the court . . . void and of no effect.'
Both Connell and Evans, supra, were cited by this court in Hollingsworth v. Peck, 226 Ga. 95, 96, 172 S.E.2d 839, 840, wherein we ruled '(a)s to the right of the mother to remove the residence of the child outside the State notwithstanding the provision in the decree prohibiting it.' After reviewing the record not found in the reported decision in Hollingsworth, supra, we find that the decision rendered there was based on a factual situation almost identical to the one here. In that case the divorce decree incorporated a voluntary agreement between the parties in which they agreed that the minor child 'shall not be removed from the State of Georgia nor shall she be taken by either party to this agreement from beyond the limits of the State of Georgia for a period in excess of one month at the time without the written consent of both parties (to this agreement).' The trial court in that case made the agreement part of the decree.
It is clear from Evans and Connell, supr...
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Carden v. Carden, A03A1903.
...does not invalidate a counterclaim to a petition to modify. Buckholts v. Buckholts, 251 Ga. 58, 302 S.E.2d 676 (1983); Heard v. Vegas, 233 Ga. 911, 213 S.E.2d 873 (1975). Buckholts, on which the trial court relied in the case at bar, is 13. Phillips v. Brown, 263 Ga. 50, 51(2), 426 S.E.2d 8......
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Howard v. Sharpe, S96A0125
...permission from it prior to seeking relief in any other action is an illegal attempt to retain jurisdiction. Compare Heard v. Vegas, 233 Ga. 911, 213 S.E.2d 873 (1975) ("a court cannot attempt to retain jurisdiction [in a child custody case] after its final order"); compare also Anthony v. ......
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Carr v. Carr, A92A1978
...(1984), in which the joint custody agreement prohibited the parents from taking the children out of Georgia. See also Heard v. Vegas, 233 Ga. 911, 213 S.E.2d 873 (1975) ("a court cannot attempt to retain jurisdiction after its final The self-executing provision in the trial court's decree h......
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Tenney v. Tenney, A98A0834.
...reactivated in this current proceeding "if [the father] desires to relocate to Florida or elsewhere." See Heard v. Vegas, 233 Ga. 911, 912(1), 213 S.E.2d 873 (1975) ("a court cannot attempt to retain jurisdiction [in a child custody case] after its final order"). Compare Carr v. Carr, 207 G......