Taylor v. Taylor
| Decision Date | 06 April 1961 |
| Docket Number | No. 21130,21130 |
| Citation | 119 S.E.2d 571,216 Ga. 767 |
| Parties | Charles Leslie TAYLOR v. Bobbie Settlemire TAYLOR. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The court rendering a final decree, awarding permanent alimony and custody of children, has jurisdiction to entertain a contempt proceeding, charging a failure to obey the decree, though the party sought to be adjudged in contempt subsequently to the date of the decree removed his residence to another county.
2. The court did not abuse its discretion in adjudging the father in contempt.
James H. Neal, Fayetteville, for plaintiff in error.
Earl Staples, Carrollton, for defendant in error.
The bill of exceptions assigns error on the order overruling the general demurrer of the respondent to a petition seeking to adjudge the respondent in contempt of court and an order adjudging him in contempt.
In a divorce action between the parties in Carroll County Superior Court, on April 8, 1960, by a final decree the two minor children of the parties were awarded to the mother with the right of the father to visit with and have them with him for two hours twice a month and pay the mother $100 a month for their support. On October 31, 1960, the mother filed her petition in Carroll Superior Court, alleging that the father had failed to comply with the terms of the final decree, in that he had not contributed anything for the support of the children and had, on or about September 1, 1960, carried the children to Clayton County, Georgia. After a hearing the father was adjudged to be in contempt of court and ordered to serve ten days in jail and pay the mother $250 and $50 attorney's fees.
1. The general demurrer asserts (a) that the court was without jurisdiction, in that it appeared from the petition that the father and the children were residing in Clayton County, and (b) the provision in the final decree that 'said children are not to be taken out of Carroll County' was a nullity, in that the court was without power to retain jurisdiction over the custody of the children.
There is no merit to either contention. The jurisdiction of the court in a contempt proceeding is an incident of the divorce and alimony action. The court that entered the final decree has jurisdiction to attach the father for contempt although he reside out of the county where the suit was brought. Bilbo v. Bilbo, 167 Ga. 602(3), 146 S.E. 446; Curtright v. Curtright, 187 Ga. 122(2), 200 S.E. 711. (This is not a case of a contest between the parties as to the custody of the children, and therefore the cases of Crowell v. Crowell, 190 Ga. 501, 9 S.E.2d 628, and Dutton v. Freeman, 213 Ga. 445, 99 S.E.2d 204, relied on by the father, are not in point.) As to the contention that the court did not have the power to restrain the parties from taking the children out of Carroll County, the petition alleged facts showing a noncompliance by the father as to payments of alimony and was sufficient to allege a cause of action for contempt, and sufficient to withstand a general demurrer.
2. The father contends that the order of the court respecting failure to pay alimony was contrary to the evidence and facts brought out at the trial, as shown above, and that such order was an abuse of discretion, since any order should be based upon the defendant's refusal to obey the order of the court, and not upon his inability to obey the court. While we agree with this contention, the evidence is sufficient to show refusal to obey rather than inability to obey the court's order. The evidence shows that the father earned $500 since the 1st day of April, 1960, to the 4th day of November, 1960, paying the mother only $75 of this amount, and he was in arrears in the sum of $550. While there is some evidence that the father was ill, he has not made it clear that he has in good faith exhausted all the resources at his command and has made a diligent and bona fide effort to comply with the order of the court....
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