McNeal v. McNeal ( 1975 )

Jordan, Justice,

dissenting.

While I concurred in Davis v. Davis, 230 Ga. 33 (195 SE2d 440), it is now my opinion that the holding therein is wrong and that the case should be overruled. No authority was cited for the holding in that case and in my opinion this court construed too narrowly the provisions of the Civil Practice Act respecting counterclaims and cross complaints. The result is an absurdity which prevents a court having jurisdiction of the parties and the subject matter from adjudicating all issues between the parties.

Code Ann. § 81A-113 provides that "A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” (Emphasis supplied.)

Except for the holding in Davis, supra, this court has liberally construed the above provision of the CPA. In Smith v. Smith, 229 Ga. 580 (193 SE2d 599) this court held: "When the mother filed a habeas corpus petition in the county of the father’s residence, she submitted herself to its jurisdiction and that court could decide the issue raised by the cross complaint seeking a change of custody of the minor child because of a material change of conditions.” The Smith case, supra, along with Glover v. Sink, 230 Ga. 81 (195 SE2d 443) and Padgett v. Penland, 230 Ga. 824 (199 SE2d 210), was cited as authority for the holding in Vines v. Hibdon, 232 Ga. 539, 540 (207 SE2d 503) to the effect that the court could properly entertain and adjudicate the issues raised in the mother’s counterclaim to the father’s equitable petition dealing with custody of the children. We said in Vines, supra, that these three cases "established the rule that a counterclaim or an original action can be brought to redetermine custody of children based on changed conditions that have occurred since the rendition of a former custody judgment.”

The contempt action in this case contended that the defendant was in arrears in his alimony payments. His counterclaim contended that there had been a substantial change in his financial condition affecting his ability to pay and a material change affecting the visitation rights of the plaintiff. The trial court, relying on Smith v. Smith, supra, and the quoted provision of the CPA, held that "the plaintiff submitted herself to the jurisdiction of the court by filing this application for contempt; therefore, the defendant’s counterclaim for modification of the divorce decree as to alimony payments and visitation rights is properly before this court.”

If this court is to continue its policy of giving a liberal construction to the provisions of the Civil Practice Act, as was intended by the legislature, this judgment of the trial court should be affirmed. Courts should ever strive to seek a position which takes into account in due proportion the wisdom of the past and the needs of the present.

I respectfully dissent. I am authorized to state that Justice Hall joins in this dissent.