Connell v. Connell , 119 Ga. App. 485 ( 1969 )

Whitman, Judge.

This case arises out of an action by Jacquelyne Cook Connell against A. J. Connell to recover on a foreign judgment, as a debt of record, in the Municipal Court of the City of Augusta, Ga. Defendant’s plea to the jurisdiction was overruled. Defendant’s responsive pleading, asserting several matters in defense, was stricken, pursuant to motion, as failing to set forth facts sufficient to constitute a defense. Judgment was entered for plaintiff and defendant appeals therefrom.

The marriage of the parties herein was terminated by a final judgment and decree of total divorce of the Domestic Relations Division of the Superior Court of Richmond County, Georgia. The divorce decree awarded the custody of the children to Mrs. Connell, and also provided for alimony and child support.

Mrs. Connell moved to South Carolina with the children and established domicile there. She then filed a petition in the Court of Common Pleas, Aiken County, South Carolina, for a modification of the Georgia divorce decree with respect, among other things, to its child support provisions based on changed conditions, and had the petition, with a summons, served on Mr. Connell in Aiken County, S. C. Mr. Connell filed his “answer and return,” stating therein that he was making a special appearance for the purpose of objecting to the jurisdiction of the court; that the personal service upon him was not legally effective, and, further, that the court had no jurisdiction of the subject matter. He moved the court to dismiss the action against him. But the court determined, because of other contentions made in the “answer and return,” that Mr. Connell had answered on the merits, thereby making his appearance a general appearance rather than a special appearance, and thus any right to assert that the court had no jurisdiction over the person had been waived. This determination was upheld on appeal. See Connell v. Connell, 249 S. C. 162 (153 SE2d 396).

Thereafter the Court of Common Pleas determined that it was authorized under South Carolina law to modify the provisions of an original alimony decree of another State based on changed financial conditions and entered judgment providing for increased child support payments by Mr. Connell and for the payment of attorney’s fees involved in bringing the action. The judgment awarding attorney’s fees was made expressly in favor of Mrs. Connell’s attorneys. However, such a judgment will be construed as one which the plaintiff may enforce in her own name. Walden v. Walden, 171 Ga. 444, 446 (155 SE 919). These judgments were the basis of the action by Mrs. Connell in the Municipal Court of the City of Augusta, the final order in which is the basis for this appeal by Mr. Connell. Held:

1. The overruling of Mr. Connell’s plea of no jurisdiction of the subject matter in the Municipal Court of Augusta is enumerated as error. It is argued that the action was one involving alimony, child support and other issues strictly within the jurisdiction of the superior courts of this State.

The plea was properly overruled. A suit to enforce a decree for alimony of a sister State does not make such suit an alimony case, rather, it is simply an action on a debt of record. McLendon v. McLendon, 192 Ga. 70 (14 SE2d 477); Lawrence v. Lawrence, 196 Ga. 204 (3) (26 SE2d 283); Henderson v. Henderson, 209 Ga. 148 (1) (71 SE2d 210). The Municipal Court of Augusta therefore properly had jurisdiction. Ga. L. 1965, pp. 2144, 2146.

2. Mr. Connell asserted below that the Court of Common Pleas of South Carolina was without jurisdiction over him and that the orders issuing from said court are not enforceable against him in Georgia. This defense was stricken on motion, which action is enumerated as error.

The record shows that the question of jurisdiction was raised in the South Carolina court by Mr. Connell and was decided adversely to him. That determination is conclusive. Drake v. Drake, 187 Ga. 423 (5) (1 SE2d 573).

3. It was also asserted in defense that (1) the complaint states no claim for which relief can be granted; (2) that the rights between the parties were previously established in a final judgment and decree of total divorce entered by the Superior Court of Richmond County; (3) that the Court of Common Pleas of South Carolina was without jurisdiction to modify the decree of the Superior Court of Richmond County; and (4) that defendant has at all times complied with the terms and conditions of the Richmond County Superior Court decree. These defenses were stricken on motion, which action is enumerated as error.

The judgment sued on, being properly authenticated and rendered by a court of competent jurisdiction of South Carolina, must be accorded the same full faith and credit in Georgia which it would be accorded in South Carolina. Tompkins v. Cooper, 97 Ga. 631 (25 SE 247); Thomas v. Morrisett, 76 Ga. 384.

Most courts, as a general rule, will not entertain applications to modify alimony decrees of foreign courts, requiring instead that such applications be first made to the foreign courts rendering them. 27B CJS 884, 916, Divorce, §§ 381, 398 (b). In Georgia, compare Dyal v. Dyal, 65 Ga. App. 359, 364 (16 SE2d 53), regarding a foreign alimony decree, with Peeples v. Newman, 209 Ga. 53 (1) (701 SE2d 749), regarding a foreign custody decree. South Carolina was formerly in accord with the general rule. Johnson v. Johnson, 194 S. C. 115 (8 SE2d 351); Johnson v. Johnson, 196 S. C. 474 (13 SE2d 593, 134 ALR 318). However, our sister State now seems to be of the view, with regard to foreign decrees established there for local enforcement, that her courts may entertain and determine a plea for modification of the foreign alimony decree on any grounds that could be asserted in the foreign court. See Grossman v. Grossman, 242 S. C. 298 (130 SE2d 850). This view is not at odds with Georgia law, as our Supreme Court has held that notwithstanding decrees rendered here affecting the rights of parties while such parties are subject to the jurisdiction of this State, when one of the parties, such as a mother and her minor child, lawfully establishes residence in a foreign State, the foreign State acquires jurisdiction over any new questions concerning the custody, control, and general welfare of the minor child. Stallings v. Bass, 204 Ga. 3 (48 SE2d 822); Milner v. Gatlin, 139 Ga. 109 (2) (76 SE 860). In this case, the South Carolina court has so acted. The judgment sued on was entered with jurisdiction over all the parties and is entitled to full faith and credit in Georgia. There was no error in striking the defenses interposed by Mr. Connell in this regard.

Argued September 4, 1968 Decided February 26, 1969 Rehearing denied March 12 and April 4, 1969— Allgood & Childs, Thomas F. Allgood, for appellant. Albert G. Ingram,, for appellee.

4. It is also contended that the trial court erred in hearing and ruling on plaintiff’s motion to strike and dismiss which had not been assigned for hearing as required by law; that the motion was in effect either a motion for summary judgment or a motion for judgment on the pleadings, and that a hearing could not be had before the expiration of 30 days under Code Ann. § 81A-156, nevertheless, the motion was assigned for hearing only 6 days after notice thereof. It appears from the record that both parties appeared before the court and argued the motion on the day assigned without objection as to time. No complaint may now be made as to the timeliness of the hearing. Mathis v. Kimbrell Bros. Tire Service, 117 Ga. App. 399, 402 (2) (160 SE2d 855).

Judgment affirmed.

Bell, P. J., Jordan, P. J., Hall, Eberhardt, Pannell and Quillian, JJ., concur. Felton, C. J., and Been, J., dissent.