Ward v. Ward, 24361

• Decision Date: 05 January 1968
• Docket Number: No. 24361,24361
• Citation: 159 S.E.2d 81,223 Ga. 868
• Parties: Barry W. WARD v. Mary Aline Braswell WARD.
• Court: Georgia Supreme Court

Page 81

159 S.E.2d 81

223 Ga. 868

Barry W. WARD v. Mary Aline Braswell WARD.

No. 24361.

Supreme Court of Georgia.

Jan. 5, 1968.

Syllabus by the Court

1. The superior court of a county of this state has jurisdiction of an action for temporary and permanent alimony under Code § 30-213 against a nonresident temporarily sojourning in the county, upon whom personal service has been made.

2. An action for alimony under Code § 30-213 will not abate upon a showing that a divorce action by the husband is pending in the State of Alabama.

M. K. Pentecost, Jr., Atlanta, for appellant.

Edward D. Wheeler, Decatur, for appellee.

MOBLEY, Justice.

Mrs. Mary Aline Braswell Ward brought a petition for temporary and permanent alimony for herself and minor child against Barry W. Ward in Fulton Superior Court. She alleged that she is a resident of DeKalb County, and that the defendant 'alleges himself to be a resident of the State of Alabama, but is now sojourning in Fulton County, Georgia, and when served personally with this petition, will be subject to the jurisdiction of this court.' The petition was personally served on the defendant in Fulton County. His general Demurrers and plea in abatement were overruled and denied, and the appeal is from these judgments.

1. The appellant contends that the overruling of his general demurrers was error because the petition showed that the Superior Court of Fulton County was without jurisdiction of the cause of action. It is asserted that the allegations of the petition, when construed most strongly against the pleader, aver that the appellant is a nonresident of the State of Georgia, and we agree with this assertion. The appellant contends that the jurisdictional rules as to divorce apply to actions for permanent alimony where no divorce is prayed, and asserts that an action for alimony by a resident of DeKalb County against a nonresident must be brought in the county of her residence.

The Constitution, Art. VI, Sec. XIV, Par. I (Code Ann. § 2-4901) fixes the venue of divorce actions. This constitutional provision refers only to 'divorce cases' with no mention of alimony matters. In Watts v. Watts, 130 Ga. 683, 684, 61 S.E. 593, it was held: 'On account of the peculiar interest of the public in the preservation of domestic relations, provisions have been made by the Constitution of this State and by legislative enactment which take divorce suits out of the rules that govern other actions, and place restrictions around them indicating a policy to hinder facility in the procurement of divorces * * * In fixing the venue for the trial of divorce suits, they were put in a class separate and distinct from all other suits, * * *'

While the interest of society is generally opposed to the grant of divorce, it is vitally concerned that provision be made by the husband for the support of his wife and minor child living apart from him. In Campbell v. Campbell, 67 Ga. 423(1), it was held: 'Where a husband arriving in Savannah, in this state, abandons his wife, a bill by her for alimony will lie against him if found and served in the county of Chatham, and the chancellor, thus having jurisdiction of the case for permanent alimony, may grant temporary alimony as in cases of petitions for divorce.' In the body of the opinion (at page 428) it was said: 'Nor do we mean here to decide that the jurisdiction would attach in an application for divorce. There the policy of the law might be different, as the law itself may be. But policy as well as law is clear to the extent of showing jurisdiction for alimony in case of abandonment of a wife by her husband within this state, when he is a citizen of another.' Counsel for the appellant attempts to distinguish the Campbell case from the present case because the statement of fact recited that: 'After being deserted, she determined to reside in Savannah.' The jurisdiction of the Campbell case was plainly not based on the residence of the wife, since it was held (at page 426): 'Thus she was left and compelled to make Savannah her temporary home, and as her husband was not a citizen of Georgia, resident in any county of this State, no court in this State had jurisdiction to hear and determine any cause by anybody against him, unless the defendant could be caught and served therein. But as he was a nonresident, traveling through the state, any court of any county therein which could serve its process on him acquired jurisdiction of his person.'

'The jurisdiction of this State and its laws extend to all persons while within its limits, whether as citizens, denizens, or temporary sojourners.' Code § 15-202; Murphy v. John S. Winter & Co., 18 Ga. 690(1). The action for temporary and permanent alimony filed by the appellee in Fulton County was not subject to general demurrer for lack of jurisdiction in the court.

2. The plea in abatement was based on the ground that a divorce action by the appellant against the appellee as pending in the State of Alabama at the time the petition for temporary and permanent...