Gore v. Gore , 217 Ga. 478 ( 1961 )

Candler, Justice.

Mrs. Gore, now Mrs. Pavy, instituted contempt proceedings in the Superior Court of Dougherty County against Cecil Jerome Gore, her former husband. Her petition alleges: She and the respondent were divorced in Dougherty County on July 2, 1960, and custody of their minor daughter was awarded to her, subject to certain .visitation rights conferred on the father. His visitation rights were subsequently enlarged by an unexcepted to order, which provides that it shall be the “duty and responsibility” of the father to pick up such child at the residence of the mother and return it to her at the end of his visitation period. On a visit of the child with the father under the terms of such order, he has failed and refused to return her to the petitioner, though -the period for such visit with him has expired. Through his counsel, he has notified the petitioner that he does not intend to return the child to her. The respondent filed a plea to the jurisdiction of the Superior Court of Dougherty County and alleged that only the Superior Court of Mitchell County had jurisdiction to hear and determine the proceeding, since he was a resident of the latter county when the petition was filed. He also demurred to the petition on the ground that it alleged no cause of action for the relief sought and specially on the grounds that (1) the petition was not properly verified, (2) the order fixing custody of the child involved was not set forth in the petition nor a copy of it attached thereto, and (3) it named no party defendant to the proceeding. The parties stipulated that the respondent was in fact a resident of Mitchell County when this proceeding was instituted against him in the Superior Court of Dougherty County. The court found against the plea to the jurisdiction, overruled all of the demurrers, and found and adjudged the respondent to be in contempt. He excepted to those judgments. Held:

1. Under the unanimous ruling of this court in Moore v. Berry, 210 Ga. 136 (78 SE2d 6), there is no merit in the contention that the Superior Court of Dougherty County was without jurisdiction to hear and determine the question raised by this proceeding. The theory upon which the right of a court to punish for contempt is, that “Every court has power to compel obedience to its judgments, orders, and processes.” Gaston v. Shunk Plow Co., 161 Ga. 287, 298 (130 SE 580). From this, it necessarily follows that “Only the court offended . . . has power to punish for the contempt, or to entertain proceedings to that end.” Goodrum v. Goodrum, 202 Ga. 135 (4) (42 SE2d 450); In re Fite, 11 Ga. App. 665 (3) (76 SE 397).

2. There is no merit in. the contention that the trial judge erred in overruling the special demurrers which the respondent interposed to the petition. There is no requirement of law that a contempt petition be verified. Code § 37-1208; Roe v. Watson, 151 Ga. 365 (1) (106 SE 907); 6 R. C. L. 531. The substance of the custody order which the respondent is charged with violating is alleged in the petition and a copy of it is attached thereto. The petition sufficiently names Cecil Jerome Gore, father of the child involved, as the defendant or the person required to respond thereto.

3. “An order or judgment which merely declares the rights of the parties without an express command or prohibition is not one which may be the basis for a contempt proceeding for the failure to comply therewith.” Wilson v. Chumney, 214 Ga. 120 (1) (103 SE2d 552). For like rulings, see Brown v. Smith, 150 Ga. 111 (2) (102 SE 813); Hammock v. Hammock, 209 Ga. 751 (2) (76 SE2d 15); and Mote v. Mote, 214 Ga. 134 (103 SE2d 565). But in the instant case the order which confers specified visitation rights on the father expressly imposes a duty and responsibility on him to return the child involved to the possession or custody of its mother at the end of each visitation period conferred on him, and the duty and responsibility thus imposed on him by such order is the legal' equivalent of an express provision requiring or commanding him to do so. This being true, the cases mentioned above, which are cited and relied on by the plaintiff in error, are on their facts clearly distinguishable from the case at bar and the rulings made in them are not as to the instant case controlling and binding authorities, as here contended. As against the.general demurrer interposed thereto, the petition stated a cause of action for the relief sought, and the court did not err in overruling it. See Mote v. Mote, supra; Crawford v. Manning, 12 Ga. App. 54 (3) (76 SE 771).

4. Error is assigned in the bill of exceptions on the order adjudging the respondent in contempt, on the ground and for the alleged reason that it is contrary to law since the custody judgment and especially that part of it which confers-visita- ■ tion rights on the respondent father contains no order or command for a violation of which he could be held in contempt. For the - reason stated in division 3 of this opinion, there is manifestly no merit in this contention.

Argued November 14, 1961 Decided November 21, 1961 Rehearing denied December 8, 1961. Frank C. Vann, for plaintiff in error. Louis A. Peacock, contra.

Judgment affirmed.

All the Justices concur, except- Duckworth, C. J., and Head, P. J., who dissent.