Smith v. Smith, 32313
| Decision Date | 08 June 1977 |
| Docket Number | No. 32313,32313 |
| Citation | 236 S.E.2d 364,239 Ga. 202 |
| Parties | Ashley Burrell SMITH v. Joyce Nadine SMITH (now Honea). |
| Court | Georgia Supreme Court |
Archer, Sparrow, Barnes, Barron & Wallhausen, George N. Sparrow, Jr., East Point, for appellant.
McCord, Cooper & Voyles, Robert B. McCord, Jr., Hapeville, for appellee.
The appellant and appellee were divorced in Fulton County Superior Court by decree entered May 10, 1967. The appellant was awarded custody of the two minor children of the parties, and appellee was given reasonable visitation rights provided she gave at least 24 hours notice of her desire to visit the children. In 1976 appellee began attempts to exercise these visitation privileges and was told by appellant that he thought it best she not see the children after such a long absence. The appellee then brought this contempt action in Fulton County Superior Court and by amendment prayed for modification of the visitation rights to have specific periods for such visitation.
The appellant answered the amended pleadings, contending the court did not have jurisdiction to modify the decree since he was now a resident of Fayette County. The court overruled appellant's motion and granted appellee specific visitation rights "every other week from 3:00 to 5:00 P.M. on Wednesdays unless the parties mutually agree upon another date." The appeal is from this order.
This court held in Henderson v. Henderson, 231 Ga. 577, 578, 203 S.E.2d 183, 184 (1974), that: "We agree the terms of a final divorce decree cannot be modified in subsequently filed contempt proceedings because any change in custody or visitation must be accomplished through new proceedings based upon evidence showing a change in circumstances affecting the interest and welfare of the minor children . . . The trial court had jurisdiction over the person of the appellee in the contempt case to enforce the original divorce decree . . . but had no jurisdiction in that case to modify the terms of the decree, even by consent of the parties."
The trial court erred in entering its order modifying the visitation rights granted appellee and specifying periods of visitation.
Judgment reversed.
All the Justices concur, except HALL and HILL, JJ., who dissent.
By amendment appellee prayed for modification of visitation rights from "reasonable visitation" to specific hours every other Wednesday.
In my view, the trial court had authority to change the appellee's visitation rights pursuant to Ga.L.1976, p. 1050, where it was provided that: ...
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Sampson v. Sampson
...affecting the interest and welfare of the minor children." This language in Henderson was quoted in the recent case of Smith v. Smith, 239 Ga. 202, 236 S.E.2d 364 (1977), also cited by appellant. Since the Henderson decision the Georgia Legislature has passed an addition to Code § 30-127 wh......