156 Ga. App. 293 | Ga. Ct. App. | 1980
The parties to this action filed in the Putnam Superior Court were divorced and a final judgment and decree was issued and filed on October 26, 1979, “nunc pro tunc” as of October 23, 1979. The plaintiff in the divorce action (the mother) was awarded custody of the parties’ minor child. However, the defendant father was allowed certain visitation privileges “on the first Saturday of each month at the Plaintiffs mother’s resident from 1:00 o’clock p.m. until 4:00 o’clock p.m. The Defendant shall come alone to Plaintiffs mother’s residence at these times. On the Sundays which follow the first Saturday the Plaintiff agrees to bring the child to the residence of the parties in Eatonton, Georgia, so that the Defendant can further visit with his child. This shall be accomplished between the hours of 2:00 o’clock p.m. until 5:00 o’clock p.m. Plaintiff shall remain with the child at all times and agrees to come alone on these Sunday visits.” This order also provided further restrictive visits with the child as to “a joint visit for Defendant and his parents,” the method of picking up the child and placing a duty on the plaintiff “to have the child ready at these times.”
Almost immediately in the same case the defendant filed a motion or complaint praying that the plaintiff be cited for contempt in not allowing visitation privileges. A rule nisi issued but apparently was never heard in accordance with the rule nisi for lack of service even though it was amended before the hearing with a summons attached and a second original was thereafter served upon the plaintiff in Clarke County by a Clarke County deputy sheriff prior to the hearing. A new contempt proceeding was then filed and served by mail on counsel for the opposing party with an order issued by the
On March 4, 1980, a complaint for modification of visitation rights (for the defendant father to be given additional visitation rights) was filed and served by mail upon counsel with another rule nisi attached in the same case and court (Putnam Superior Court), ordering the plaintiff mother to show cause on March 11,1980, why the relief should not be granted.
Plaintiff then moved to dismiss this motion for modification of visitation rights on the ground that a final judgment had been issued in the matter, and the same could not be modified by the Putnam Superior Court “except by filing a new action in the county of . . . [plaintiffs] . . . residence.”
The contempt hearing was then heard on March 14, 1980, and the plaintiff (the child’s mother) was found in contempt in that she “had intentionally denied visitation rights to the father,” and that she be confined in the county jail until she purged herself of contempt.
On July 8, 1980, another order issued as “nunc pro tunc, as of June 6, 1980,” that in addition to the contempt proceedings, the modification of visitation rights was also heard on March 14, 1980, after a continuance from March 11, 1980, finding that the plaintiff mother was intentionally denying visitation rights to the father and same were duly changed because the present visitation arrangement was not working to the best interest of the parties and the plaintiff, “had moved to Oconee County, and the travel expense was exorbitant,.. .[and] ... evidence was present showing Defendant as being able to care for his minor son,” the order reciting further that it was to supersede the final judgment and decree of October 23,1979.
Plaintiff appeals, in forma pauperis, from this order modifying the final decree reciting that the transcript of the proceedings would not be included in the record. Held:
This case is similar to and controlled adversely to the defendant father by Munday v. Munday, 152 Ga. App. 232 (262 SE2d 543), in that the plaintiff mother had not submitted to the jurisdiction of the Putnam Superior Court as to the request for modification, had moved for dismissal of this motion for modification of the visitation rights because of the improper venue. The facts of the case show that service of the contempt citation was obtained upon her by service of a second original in Clarke County, and the trial court’s order of modification recites that the plaintiff “had moved to Oconee County,” and the reason for the modification of the final judgment
Judgment reversed.