Tanis v. Tanis, 33033
| Decision Date | 24 January 1978 |
| Docket Number | No. 33033,33033 |
| Citation | 242 S.E.2d 71,240 Ga. 718 |
| Parties | John Christian TANIS, III v. Carolyn Sue TANIS. |
| Court | Georgia Supreme Court |
Fine & Block, William Hollberg, Atlanta, for appellant.
Murray, Peters & Thompson, Edward Murray, Atlanta, for appellee.
Appellant filed his complaint in the Superior Court of Cobb County seeking a modification of a final judgment and decree of divorce between the parties, specifically asking the court to increase his visitation rights with their child. He thereafter amended his complaint, adding an additional count in which he prayed that the final judgment and decree, which he sought to modify, be set aside and declared void. The trial judge denied relief to the plaintiff on each count, and he appeals to this court. He enumerates as error the court's judgment in denying him additional visitation rights, and also complains that the court erred in denying his motion to set aside and vacate the final judgment and decree of divorce. We affirm.
1. There is no transcript of the hearing and thus no evidence for us to review. We must assume that the evidence presented at the hearing was sufficient to support the findings of the trial court. Butler v. Butler, 238 Ga. 198, 232 S.E.2d 246 (1977); Craigmiles v. Craigmiles, 237 Ga. 498, 228 S.E.2d 882 (1976); Satterfield v. Satterfield, 236 Ga. 155(1), 223 S.E.2d 136 (1976). The order of the trial judge denying the plaintiff relief in this respect will not be disturbed.
2. Appellant takes inconsistent positions. Initially, he asks for modification of the final judgment and decree of divorce which he attaches to his complaint, and then adds an additional count asking the court to declare that judgment and decree void. As stated above, there is no transcript of the proceedings in the case and, consequently, we cannot tell what evidence was introduced. Appellant did, however, attach to his amended complaint a certified copy of the final judgment and decree rendered by the Superior Court of Muscogee County on the 7th day of April, 1975. The legal caption of that certified copy indicates that it is a final judgment in two civil actions filed in that court. One, being an action for divorce brought by Carolyn Sue Tanis as plaintiff against John C. Tanis, III, as defendant; the other, a petition for custody showing John C. Tanis, III, as plaintiff and Carolyn Sue Tanis, as defendant. The record filed in this court also contains a certified copy of the complaint for divorce. Appellant has not demonstrated what other pleadings were in that case. The record indicates that both the appellant and appellee were represented in the Muscogee County actions, as the final judgment and decree recites that the parties were being represented by counsel, and, as both counsel of record had approved the final judgment as to form.
Appellant complains that in a deposition he took from appellee, she testified that she moved to Georgia "some time after Labor Day" in 1974, and her complaint for divorce was filed on the 28th day of February, 1975, less than six months after she moved to Georgia. Thus, he contends that the subsequent judgment and decree of divorce was void and should be set aside because the court did not have subject matter jurisdiction, the plaintiff not having been a resident of Georgia for a period of six months prior to the time she filed her suit. Plaintiff's complaint for divorce alleged that defendant was a resident of Muscogee County, Georgia and had been for more than six months next preceding the filing of the action; however, the complaint was silent as to the plaintiff's residence.
We cannot determine from the record presented whether or not the appellant, as the defendant in the divorce action, filed a counterclaim for divorce, which he had a right to do. The final decree provides ". . . It is the judgment of the court that a total divorce be granted, . . . between the parties to the above stated cause. . . ." Without a complete record, we are also unable to tell whether or not the appellee plaintiff in the divorce case was a nonresident of Georgia on the day her complaint for divorce was filed. If she was, she was entitled to file suit against a Georgia resident under Code §...
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...as a matter of law, it is well settled that, on appeal, the burden is on the appellant to establish error. See, e. g., Tanis v. Tanis, 240 Ga. 718, 242 S.E.2d 71 (1978); Buford v. Buford, 234 Ga. 700, 217 S.E.2d 160 (1975). In order for the appellate court to determine whether the grant of ......
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