Tuten v. Tuten , 227 Ga. 228 ( 1971 )

Per curiam.

1. " 'The courts of this state have no extra-territorial jurisdiction, and cannot make the citizens of foreign states amenable to their process, or conclude them by a judgment in personam, without their consent.’ Dearing v. Bank of Charleston, 5 Ga. 497 (5); Gates v. Shaner, 208 Ga. 454 (67 SE2d 569) and cases cited.” Slowik v. Knorr, 222 Ga. 669, 671 (151 SE2d 726). Therefore, although the superior court rendering a decree in a divorce action retains exclusive jurisdiction to enforce the provisions therein relating to custody of the minor children of the parties by attachment for contempt, even where subsequent to the rendition of the order the party sought to be adjudged in contempt has removed his residence to another jurisdiction, nevertheless, in order for the court to bind nonresidents by its judgments in personam there must be personal service or waiver of personal service upon such nonresidents. Kirchman v. Kirchman, 212 Ga. 488, 492 (93 SE2d 685); Sternbergh v. McClure, 217 Ga. 278, 283 (122 SE2d 217); Connell v. Connell, 221 Ga. 379, 380 (144 SE2d 722); s.c., 222 Ga. 765 (1) (152 SE2d 567) (wherein the defendant was personally served); Ogletree v. Watson, 223 Ga. 618, 619 (157 SE2d 464) and cit. This requirement has not been changed by the enactment of the 1966 Civil Practice Act (Code Ann. Title 81A; Ga. L. 1966, p. 609 et seq.).

Accordingly, the attempted service on the nonresident defendant by certified mail was not such service as was required by law. Since the defendant did not waive personal service, but rather filed a plea to the jurisdiction, she was not subject to the court’s jurisdiction.

Argued November 9, 1970 Decided January 29, 1971. Gibson, McGee & Blount, J. B. McGee, Jr., for appellant.

Appellant and appellee, formerly wife and husband, were divorced by a final decree of Ware Superior Court in 1967, whereby the custody of the parties’ minor child was awarded to the plaintiff wife, the present appellant. There was no appeal from that judgment. The record does not reveal who the appellant’s attorney of record was in said case.

In a subsequent habeas corpus action brought by the former husband in the same court in 1968, a final judgment was rendered therein by stipulation of the parties, modifying the previous award. The judgment provided in part as follows: "4 (a) In the event plaintiff remarries and must change her domicile in order to be with her husband . . . , and in the event said new domicile is more than two hundred fifty miles from the center of Waycross, Georgia, plaintiff agrees to give defendant an additional visitation period during the summer months, day for day, missed during the year on week-ends ... 6. The custodial and visitation rights hereby awarded shall be administered by said plaintiff and said defendant so as not to interfere with the health, morals, education and welfare of said minor child and so as not to restrict the parental rights of the other with said minor child, but shall be administered so as to promote and nurture a normal parent and child relationship between the father and said minor child and between the mother and said minor child ... 7. . . [I]t is the intent and contemplation of this judgment that either of said parties shall be liable and punishable for contempt for a wilful and deliberate disregard of each and every specific provision and as well the spirit hereof.” The judgment was signed by L. W. P. Strickland, Jr., as attorney for the plaintiff former wife.

2. The application for contempt prays for the removal of the custody of the minor child from the appellant (to whom it was awarded by the previous orders of the court) and the award of custody to the appellee father. These prayers made the petition one in the nature of habeas corpus, which proceeding is an independent one and is not an effort to modify the original decree. Stephens v. Sudderth, 216 Ga. 222 (1) (115 SE2d 519). The venue of such actions is the jurisdiction where the child resides (Hunt v. Hunt, 94 Ga. 257 (2) (21 SE 515)), which, in this case, is England. Even if the child had been residing within the court’s jurisdiction, moreover, the judgment of the court awarding custody to the appellee father would have been a mere nullity, since the action was not brought under Code Ann. § 74-107 or in a separate habeas corpus action. Palmer v. Bunn, 218 Ga. 244 (127 SE2d 372); Thomas v. Thomas, 221 Ga. 652 (2) (146 SE2d 724).

Therefore, the court erred in overruling the defendant’s plea to the jurisdiction, in proceeding to a hearing on the merits of the contempt application in defendant’s absence, and in entering a judgment finding the defendant in contempt and awarding custody of the parties’ minor child to the plaintiff father.

Judgment reversed.

All the Justices concur, except Felton, J., who dissents.

On June 11, 1970, Mr. Tuten filed an application for citation for contempt against his former wife, alleging that she was violating the two above-mentioned judgments in that she had since married an Air Force officer stationed in England, where she and the child were living for the duration of her husband’s tour of duty of three or more years, and she refused to allow Mr. Tuten to bring the child home with him for his stipulated summertime visit with her on the grounds that this would interfere with the five-year-old child’s education and necessitate the child’s returning to England by herself. The applicant prayed that custody of the child be awarded to him.

The application alleged that John G. Kopp was attorney of record for appellant. Appellee demanded that service be made upon appellant and her purported attorney of record, Kopp, by certified mail and the court so ordered. In due course, return receipts bearing the signatures of appellant and her purported attorney of record were received by the clerk of the court and attached to the application.

When the rule nisi came on for hearing, appellant, through J. Baker McGee, of Gibson, McGee and Blount, filed a plea to the application for contempt, making the defenses of lack of jurisdiction over her person and insufficiency of service of process, and alleging that she had had no attorney of record at or since the filing of the application except the firm which had been employed for the sole purpose of filing the said plea. The court heard argument and citation of authority upon the special appearance and found that legal service was had.

On July 9, 1970, the court entered an order holding the appellant in contempt and requiring her to deliver the child to appellee for the purpose of exercising his custodial rights under the previous judgments and to appear before the court at 10:00 a.m. on July 20, 1970, at which time the court would further consider the contempt and the appellee’s application for change of custody. This order provided for service upon appellant by registered mail and upon J. Baker McGee by regular mail. The record affirmatively shows that the order was delivered to appellant on July 23, 1970, but no service on appellant’s attorney, McGee, appears.

Thereafter, by judgment dated July 23, 1970, and entered July 24, 1970, the court found as a matter of fact that the July 9th order had been served upon appellant and her counsel as provided therein and that appellant had wilfully failed and refused to abide by said order, and awarded the custody to appellee with visiting rights to appellant. The appeal is from this judgment.