Allen v. Allen

Appellant and appellee were married on May 18, 1957, and have one child as the issue of said marriage, to wit: John David Allen. On September 20, 1968, appellant filed a complaint against appellee in the Superior Court of McDuffie County, Georgia, praying for: (1) temporary and permanent custody of said minor child of the parties; (2) temporary and permanent alimony and support for the maintenance of appellant and for the maintenance of said minor child of the parties; (3) temporary and permanent use and enjoyment of property, both real and personal, enumerated in appellant’s complaint; (4) appellee to be restrained and enjoined from removing said minor child of the parties from the jurisdiction of the court until such time as a final termination as to the issues of the case could be made.

Appellant did not pray for a total divorce between the parties.

On October 17, 1968, appellee filed his answer to appellant’s complaint and cross action against appellant. In said cross action appellee prayed: (1) That the prayers of appellant’s complaint be denied; (2) That appellee be granted temporary and permanent custody of the minor child of said parties; (3) That appellee be awarded a total divorce, that is to say a divorce a vinculo matrimonii between the parties.

*846On November 1, 1968, the court entered an "Order as to Temporary Custody and Support and Maintenance of Minor Child” in which the temporary custody and control of the minor child of the parties was awarded to appellee’s mother, Mrs. Ella Rabun, and in which appellee was ordered to pay to Mrs. Ella Rabun the sum of $100 per month for the support and maintenance of said minor child. Said order further provided "that the provisions of this order shall remain in full force and effect until further order of this court.”

On February 15, 1971, appellant dismissed all of her pleadings in connection with her action in the McDuffie County Superior Court. On March 8, 1971, Honorable Robert L. Stevens, Judge of the Superior Court of McDuffie County, Georgia, entered an "Order as to Permanent Custody of Minor Child” in which the permanent custody of said minor child was awarded to appellee.

It is from this order of permanent custody that appellant has brought her appeal, alleging that the McDuffie County Superior Court lacked jurisdiction to award permanent custody of said minor. The judgment appealed from is as follows:

"The within case having come on to be heard in its regular order, and it appearing to the court that the sole issue now to be passed upon by the court is that of the permanent custody of the minor child of the parties, namely: John David Allen, (plaintiff having dismissed■ all of her pleadings) and after hearing evidence as contemplated by law

"It is considered, ordered and adjudged that the permanent custody and control of the minor child of the parties, namely: John David Allen, be and the same is hereby awarded to defendant, John Daniel Allen, with the right of plaintiff, Sarah E. Allen, to visit with said minor child on the home premises of the said John Daniel Allen between the hours of 1:00 p.m. and 6:00 p.m. on Saturdays and Sundays of the first and third weekends of each month, beginning with March, 1971, and at such other times as may be satisfactory and agreeable to the said defendant, John Daniel Allen.

"So ordered, this 8th day of March, 1971.” (Emphasis supplied.)

Since the judgment recites that it was rendered "after hearing evidence as contemplated by law,” and the evidence is not brought *847to this court on the appeal, the judgment must be and is affirmed on authority of Code § 30-213; Breeden v. Breeden, 202 Ga. 740 (5) (44 SE2d 667) and cit.; Grayson v. Grayson, 217 Ga. 133 (121 SE2d 34) and McClarty v. McClarty, 223 Ga. 813 (158 SE2d 236).

Judgment affirmed.