Holcomb v. Holcomb

Mobley, Justice.

The appeal is from an order of the trial judge holding appellant in contempt and ordering her to be confined in jail for failure to comply with a custody award in a previous divorce suit between the parties. By that award the husband, plaintiff in the divorce proceeding, was awarded permanent custody of the two minor children of the parties and the wife and mother was granted visitation rights as follows: “For the year 1966, as to the summer visitation, defendant shall have said children beginning June 28, 1966; none of the visitation rights of defendant are granted for the period from August 16 to September 1 each year. During summer visitation periods, plaintiff shall have said children every other weekend, beginning July 8, 1966.” The citation for contempt charges the wife with failure and refusal to abide by the custody order and to turn over the minor children to the plaintiff, father. Held:

This case is governed by the rule that an order or judgment that merely declares the rights of the parties, without any express command or prohibition, is not one which may be the basis of contempt proceedings. Adams v. Adams, 221 Ga. 710 (146 SE2d 159); Mote v. Mote, 214 Ga. 134 (103 SE2d 565); Hammock v. Hammock, 209 Ga. 751 (76 SE2d 15). As in the Adams case, supra, the order did no more than declare the rights of the parties with respect to custody of the minor children, and did not expressly command the defendant mother to turn over the children to the father when her visitation period ended, nor did it expressly prohibit her from refusing to turn over the children to the father. For this reason the trial judge erred in adjudging the mother in contempt.

Argued December 12, 1966 — Decided January 6, 1967. Marvin O’Neal, for appellant. Vaughn Terrell, Robert D. Engelhart, for appellee.

Judgment reversed.

All the Justices concur.