Southworth v. Southworth
265 Ga. 671
Ga.
1995
Check Treatment

*1 help. telephoned of the residence later, crept out the older son body on Priest’s on a bed with appellant resting found police officer result of died as a that Priest testimony established Expert the floor. body. her head and lower blunt force trauma multiple extensive in their blood. of alcohol high levels appellant Both Priest ra- authorize a sufficient to presented at was The evidence charged be- the crimes guilty of appellant fact to find tional trier of Virginia, Jackson under the standard yond a reasonable doubt 2781, SC 61 LE2d 443 U. S. 307 appellant’s merit carefully and find without reviewed erred enumerations, the trial court in which he asserts

remaining matter relat- jury on a photographs, charging admitting certain assault, motions for mistrial denying three ing aggravated appellant’s character purportedly placed relating to matters that issue. concur. All the Justices

Judgment affirmed. September 11, 1995. Hadad,

Juwayn Turner, Carl P. Slaton, Attorney, M. District John Lewis R. Bowers, Attor- Attorneys, Michael Greenberg, Assistant District General, Attorney General, Boleyn, Assistant ney Susan V. Senior General, Brooks, Attorney Assistant Marla-Deen v. SOUTHWORTH. S95A1262. SOUTHWORTH Justice. Carley, (Husband) pe- filed a 1993, E. Southworth Chester (Wife) an- Maria E. Southworth separate maintenance and

tition for Thereafter, a separate maintenance. swered and counterclaimed the motion April temporary were entered. number of orders pro se. proceeded was of Wife’s counsel to withdraw July 19,1994, 6,1994, On July Wife moved On or about so as to add petition Husband amended irre- marriage was a divorce on a count attempted by mail- was of this amendment trievably broken. Service in her coun- listed former address of Wife copy Georgia ing a (b); Superior Uniform See OCGA sel’s motion to withdraw. amendment and filed no answer Court Rule 4.3. Wife trial. On November scheduled divorce appear she not at the did decree of the final divorce The granted. a divorce property of and Husband all of the marital and the awarded children. child the minor

Within same term of Wife filed a motion set aside decree, knew that she had moved from alleging the divorce maintenance when amended add the divorce count and that he “should have initiated new com- *2 personally hearing her. . . .’’At the on Wife’s mo- served tion, that, shortly prior Husband made the concessions to Wife’s move, that, filed had cohabited and at time he the amend- ment, living she had and was “somewhere in Califor- nia, upon perhaps Mexico.” Based Husband’s concession as to his co- Wife, prior habitation trial Separate court set aside “the prior regard Maintenance Orders” “all cus- Court Orders with tody and minor . . visitation children . and the division of mar- upon ...” ital Based concession as to knowledge longer living Georgia was no when he filed divorce, to seek a the trial court set aside the di- final vorce decree because of failure to have served Wife with the by publication “either Georgia Long or the Arm Stat- . addition, that, . .” In ute. the trial court held insofar as mo- Wife’s tion had been within the same term of had set aside the final divorce decree “within its own discretion.” applied discretionary appeal Husband for a trial court’s appeal order. This results from application. of his 1. Where a decree permanent alimony has been entered a has there been no di- voluntary a cohabitation “shall prior annul and set aside” that 19-6-12; Brown, (78 516) decree. OCGA Brown v. 210 Ga. 233 SE2d (1953). Here, however, granted. Therefore, a divorce had been or- ders entered in prior separate connection with the maintenance action been superseded by 19-6-10; the final divorce decree. OCGA § Browne, 594) Browne v. 242 107 Ga. It follows that the trial court’s order prior Separate which set “the aside Mainte- nance Orders” on the basis of Husband’s concession as to his cohabi- tation with superfluous. Wife was (4), Under OCGA 19-5-4 a shall not be

where has been a condonation “[t]here and cohabitation of, to the acts complained with notice thereof.” this statute establishes condonation and cohabita- a tion constitute a pending action, defense to not a setting previously aside a entered divorce . . decree. “Matters of . up condonation should be set before final Young verdict. [Cit.]” Young, (1) (2 622) (1939). 188 Ga. 33 It follows that the court erred insofar as it set aside prior “all Court Orders with and visitation of the minor children . . . and the division

673 as to his concession property” on the basis of Husband’s of marital with Wife. cohabitation before,

Moreover, rather in this case occurred the cohabitation seeking a divorce on the after, filed his amendment than Woods irretrievably marriage broken. ground that the (1978); Lindsay Lindsay, Woods, 241 Ga. 8) (1978). pled Accordingly, even Wife had defensively cohabitation thereby.

no would have been raised viable defense given notice of the process requires 3. Due that a defendant Corp., v. Commercial Credit pending against her. Womble 204) (1974). state, is con- service of and, conformity in the absence of service trolled OCGA § statute, jurisdic- the trial court obtains no of that person judgment rendered tion over the defendant Plaza, v. F. P. Supply DeJarnette Co. against her is void. Inc., (4) (193 (7), of OCGA § with Husband’s

service of was made on Wife connection Stallings, Stallings v. Baldwin, Baldwin v. *3 (1907); 116 Ga. 471 SE SE Walker, (1902). (1) Walker v. 228 Ga. 615 (1972). over Accordingly, personal jurisdiction the trial court had Wife as to that action. As to his amendment adding a claim for di- required to re-serve Wife Husband contends that he was not 9-11-4, in but was authorized with accordance with OCGA § known address merely to mail the amendment to Wife’s last subsequent of OCGA 9-11- service § (b). employed by plaintiff OCGA 9-11-5 can be the Whether § a sub- separate maintenance action so as to serve the defendant with appears sequent asserting divorce to be a a claim for question impression. of first part, relates to the service of relevant OCGA 9-11-5 complaint” and Husband

“every pleading original pleading. such Under OCGA 9-11- urges that his amendment was pleading of an additional cause prohibition against there is no the (7) Rogers, McDonald v. of action amendment. Paper Co. 844) (1972), Gilman grounds, overruled on other James, 447) (1975). However, purpose 235 Ga. 348 the merely a new cause of action Husband’s amendment was not to add sought in his thereby for seek relief additional to that divorce separate Although still maintenance. an action pending grow separate maintenance and an action for divorce both out matter, marriage relationship subject and relate to the same Ward, Ward purposes questions. different have different and raise (2) Allen, (1968); Allen v. 136) (1942). Indeed, questions are so purposes provides separate an expressly different the law action petition for is abeyance held in when a maintenance “shall be judge presiding filed bona fide either [in alimony.” has made his order on the motion for OCGA 19-6- action] Thus, “pleading Husband’s was not a to meaning complaint” separate original maintenance within (a). It original OCGA 9-11-5 was itself an very purpose replace of which was to seek relief which to- would tally original complaint separate the relief sought Husband’s Accordingly, subsequent pleading maintenance. did not merely state a cause of which his original was additional separate maintenance, entirely claim but new cause of action which, successful, original would obviate that claim. lawsuit, a party apprised pendency

Once has been of a his right through subsequent constitutional to notice can be met service (b). by mail in with accordance OCGA 9-11-5 Allen v. Bd. Tax Paulding County, Assessors 247 Ga. 568 (b) OCGA 9-11-5 “cannot be as a used Miller, means circum- vent Due Wright Process Clause.” & & Fed. Prac. Proce- 2d, 1146, p. dure: purpose Civil 426. The of Husband’s amendment entirely was to initiate an thereby new action for divorce and secure original which would obviate action for mainte- Compare nance. Tax Paulding Allen Bd. Assessors County, supra. Accordingly, Husband’s new cause of action for divorce could not be through instituted original sepa- to his action for (a). rate maintenance and the OCGA 9-11-5 was required serve Wife accordance with 9-11-4, OCGA so as to afford her notice of of the new for divorce and to jurisdiction afford with regard to that At new action. time amendment, Husband knew Wife had If he he should per- have her served sonally (e) (2). If he did not know *4 should have by publica- to have her served tion in (e) accordance with OCGA Because he did neither, Wife was afforded no notice of the of the divorce action and the trial court was personal jurisdiction afforded no to that action. It follows final divorce decree correctly void set that decree aside (d) (1). under OCGA 9-11-60

4. Since the trial court’s order was authorized under OCGA 9- 11-60, we need not address the discretionary issue the trial court’s the Wife’s motion to set aside because was filed as the final divorce decree. in the same term of court concur, Fletcher, except All Judgment Justices affirmed. J., specially. P. who concurs Justice, concurring specially. Presiding Fletcher, party may I initiate a agree that and com- personal service of the summons of a summons and

issuance not, however, I believe with OCGA 9-11-4. do application Georgia’s by result is mandated of OCGA service rules rules under OCGA 9-11-15 actions, permits the liberal amendment 9-11-5. OCGA striking original pleading and sub- allowing the wholesale even Additionally, 9- pleading stitution of a new amendment.1 for relief to expressly permits adding an amendment new claims 11-5 rules, the mere fact that an amend- be served mail. Under these replaces pre- questions or seeks relief that ment raises different require personal service under OCGA viously sought is insufficient 9-11-4.2 however, differ- policy, requires that divorce be treated Public involved, important including ently unique issues because support minor relationship, custody and severing of the marital Therefore, I children, spouses, and division of agree that a must initiate a divorce action may not complaint under OCGA 9-11-4 and of a summons and 9-11-5 as an amendment serve a for divorce under OCGA § to a

Stephen Berry, L. Harrison, Sorenson, C.

Garnett Randall BRISCOE, E. JR. S95Y1635. THE OF J. IN MATTER (461 SE2d

Per curiam. Briscoe, E. surrender Jr. filed a surrender practice his license to law this state. (f). disbarment, accept 4-110 equivalent of Rule license is the Hudson, Stith v. See (amendment 46) (1981) Elias, contract Stroud v. See 9-11-5). damages punitive adding could served under OCGA § and for claim tort