Whitley v. Whitley
| Decision Date | 01 October 1974 |
| Docket Number | No. 29031,29031 |
| Citation | 232 Ga. 866,209 S.E.2d 199 |
| Parties | Jake Thomas WHITLEY v. Donna Marlene WHITLEY. |
| Court | Georgia Supreme Court |
Reinhardt, Whitley & Sims, John S. Sims, Jr., Tifton, for appellant.
Fred L. Belcher, Nashville, for appellee.
Syllabus Opinion by the Court
Donna Whitley and Jake Whitley were divorced on July 8, 1970. Custody of their child was awarded to the mother with reasonable visitation rights to the father. On March 21, 1973, the parties in a writing stipulated and agreed that a material change in conditions involving the child had occurred and that the best interests of the child would be served by awarding permanent custody to his father with reasonable visitation rights to the mother. The parties further agreed that upon petition the Berrien Superior Court could grant an order changing custody of the child 'with or without a hearing of any kind at any time on or after this date and both parties expressly waive all further notice and service relative to this proceeding.' On August 16, 1973, the father filed a complaint in the Berrien Superior Court alleging that a material change in conditions and circumstances affecting the welfare of the child had occurred and that the defendant had voluntarily relinquished custody of the child to him. A copy of the stipulation and agreement was attached to the petition. On February 4, 1974, the trial court awarded the custody of the child to the father and incorporated the agreement of the parties into its order. The child remained in the custody of the father until the Christmas holidays in 1973 when the mother exercised her visitation privileges, removed the child to her new home in Florida and refused to return him. The father went to Florida and brought the child back to Georgia.
The mother filed a complaint in the nature of habeas corpus and contended that the father was illegally detaining the child since she had been awarded custody of him in the divorce proceedings in 1970. The court found that no change of circumstances affecting the welfare of the child had occurred since the divorce decree in 1970 and that the award of custody of the child to the father in February, 1974 was ineffective since the mother was not personally served with the proceedings, and that at the time of the hearing the child was in Florida with her. The appeal is from this judgment. Held:
1. The first question presented for decision in this case is whether the mother could waive service of the modification proceedings.
'A party may waive process, service of process, and the time of filing with respect to a suit against him . . . and such waiver, being a different matter from a confession of judgment, may be executed before the commencement of the action.' Henry & Co. v. Johnson, 178 Ga. 541(1), 173 S.E. 659. Code § 81-211 provides that the defendant may acknowledge service or waive process. In Adair v. Adair, 220 Ga. 852, 856, 142 S.E.2d 251, 254, this court held that 'the rule allowing waiver before filing is strictly limited to a specific suit in the minds of both parties at the time and that is filed in due course and without unreasonable delay.'
The waiver of the mother was executed on March 21, 1973, and the complaint was filed on August 16, 1973. We hold that this was a valid waiver of further notice and service in this proceeding. The fact that the mother was in the State of Florida at the time of the hearing had no bearing on this issue since she had waived further notice and service.
2. The mother asserts that under the ruling of this court in Danner v. Robertson, 221 Ga. 516(1), 145 S.E.2d 554, the trial judge was without authority to order a change of custody on February 4, 1974.
In dealing with a similar situation in Henley v. Henley, 222 Ga. 349, 350, 149 S.E.2d 783 this court said: ...
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Stamps v. Bank South, N.A.
...of the action is limited to a specific suit intended by the parties that is filed without unreasonable delay. Whitley v. Whitley, 232 Ga. 866, 867-868, 209 S.E.2d 199 (1974). However, Stamps obviously did not and could not acknowledge receiving service of the summons which had not yet issue......
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Bonner v. Bonner, S00A0544.
...323 (1996). Process never issued from the court, nor did Mr. Bonner specifically waive further service. Compare Whitley v. Whitley, 232 Ga. 866, 867-868(1), 209 S.E.2d 199 (1974); Jones v. Jones, 209 Ga. 861, 76 S.E.2d 801 When there is no proper service, and no valid waiver of service, the......
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Ford v. Hanna
...Harbin, 238 Ga. 109, 230 S.E.2d 889 (contested petition to change custody based on 14-year-old child's election); Whitley v. Whitley, 232 Ga. 866, 868, 209 S.E.2d 199 (1974) (parents' agreement to change custody ineffective to modify original decree where judge heard no evidence as to chang......
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