Shepherd v. Shepherd, 32014
| Decision Date | 13 May 1977 |
| Docket Number | No. 32014,32014 |
| Citation | 239 Ga. 22,235 S.E.2d 538 |
| Court | Georgia Supreme Court |
| Parties | Gail Adams SHEPHERD v. Charles R. SHEPHERD. |
Glenville Haldi, Peek, Arnold, Whaley & Cates, William H. Whaley, Atlanta, for appellant.
B. J. Smith, M. J. Keane, Decatur, for appellee.
This appeal is from an order of the DeKalb Superior Court vacating an earlier judgment of that court which held the husband-appellee in contempt for failure to pay alimony. In vacating the order, the trial judge found that the husband had never been personally served with the wife's motion for contempt, and, therefore, the court was without jurisdiction of the person in the contempt hearing.
This is the fifth appearance of this case in this court. See Shepherd v. Shepherd, 231 Ga. 257, 200 S.E.2d 893 (1973); Shepherd v. Shepherd, 232 Ga. 354, 206 S.E.2d 460 (1974); Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974); and Shepherd v. Shepherd, 236 Ga. 425, 223 S.E.2d 818 (1976).
The case began as a suit for alimony and separate maintenance. A judgment granting alimony was affirmed and the husband filed a suit for divorce. Before the divorce action came to trial, the wife filed a Motion for Contempt and this court affirmed a finding by the trial court that the husband was in contempt for not paying alimony payments which had accrued prior to the entry of the temporary alimony order in the divorce case, but held in abeyance any decision as to whether the husband was in contempt for sums due under the prior alimony award subsequent to the trial court's denial of temporary alimony to the wife in the divorce case.
The parties were granted a divorce and while a copy of the decree is not in the record, it is indicated the judgment of divorce specifically stated that no alimony issues had been raised. The wife, thereafter, filed a motion for contempt in DeKalb County Superior Court asking that the husband be held in contempt for his refusal to pay sums due her under temporary alimony orders of the court and under permanent alimony awards in the Final Judgment of the Court granting alimony dated March 4, 1974. The first attorney had withdrawn from the case by written request and counsel for the wife had been advised that the husband was now represented by a second attorney, who was known to wife's counsel although his name apparently had not been entered in the court records prior to that time. Service of the Motion for Contempt, together with the Rule Nisi thereon, was then made upon the second attorney by mail. No personal service was made upon the husband. Immediately following service on the second attorney, he filed a written answer in the case in behalf of the husband and the husband personally signed an affidavit that the allegations contained in that pleading were true and correct. A copy of that answer was served on counsel for the wife. The matter was not heard as originally scheduled and the attorney for the wife and the second attorney as then counsel of record for the husband, agreed on two or more continuances until the matter was finally set down for hearing on the 13th day of August, 1976.
No appearance was made for the husband at the August 13th hearing, but an affidavit was filed by the husband contesting the jurisdiction of the court and denying that a verified answer had been filed by him.
The trial court heard evidence presented by the wife and concluded that the husband knew of the hearing. It ruled that the permanent decree of alimony, as made in the case, was no longer stayed, but was in full force and effect; that the husband was in arrears in the total amount of $59,958.50; and granted judgment for that amount plus $8,000.00 attorney's fees, and that the husband was in contempt. Judgment was stayed until October 1, 1976 pending the defendant's purge of his contempt.
On a motion for rehearing, the trial court set aside the judgment of contempt against the husband based on the case of Moore v. Moore, 229 Ga. 135, 189 S.E.2d 431 (1972), saying the court had no personal jurisdiction of the husband.
The wife now appeals the sustaining of the husband's motion for rehearing, finding error in the court's holding that the husband was required to be personally served with the motion for contempt and in the court's holding that it was without jurisdiction over the person of the defendant.
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Haldi, In re
...case and hence after the divorce was granted, the prior separate maintenance award resumed full force and effect. Shepherd v. Shepherd, 239 Ga. 22, 23, 235 S.E.2d 538 (1977). 1 We so held on the seventh appeal, where we also held that the trial court erred in setting aside its order holding......
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Shepherd v. Shepherd, 33530
...Decatur, for appellee. UNDERCOFLER, Presiding Justice. This is the sixth reported appeal in this divorce case. Shepherd v. Shepherd, 239 Ga. 22, 235 S.E.2d 538 (1977); 236 Ga. 425, 223 S.E.2d 818 (1976); 234 Ga. 708, 217 S.E.2d 286 (1975); 233 Ga. 228, 210 S.E.2d 731 (1974); 232 Ga. 354, 20......
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Brown v. Fokes Properties 2002, Inc.
...is neither made by motion under this [Code] section nor included in a responsive pleading as originally filed." Shepherd v. Shepherd, 239 Ga. 22, 23-24, 235 S.E.2d 538 (1977). Where, as here, the defendant does not ever raise the defense by motion or answer, an objection to interrogatories ......
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Black v. Black, 35620
...jurisdiction of the court and waiving any claim of insufficiency of process or insufficiency of services of process. Shephard v. Shephard, 239 Ga. 22, 235 S.E.2d 538 (1977). Therefore, we find that the trial court acted properly in denying the motion to vacate and set aside the final decree......