Opinion
27734.
ARGUED FEBRUARY 14, 1973.
DECIDED MARCH 8, 1973.
Petition to modify divorce decree. Cobb Superior Court. Before Judge Hames.
Holcomb McDuff, Robert E. McDuff, Frank D. Holcomb, for appellant.
Cotton, Katz White, Edwin K. Palmer, for appellee.
1. An action by a parent to obtain custody of a child previously awarded to the other parent in a divorce proceeding, being a new action, must be brought in the county of the defendant's residence.
2. A complaint in equity attacking all or part of a divorce decree as having been fraudulently obtained in a court having jurisdiction of the subject matter and the parties must be brought in the court where rendered.
ARGUED FEBRUARY 14, 1973 — DECIDED MARCH 8, 1973.
On July 23, 1971 a divorce decree was rendered on a petition filed by Robert Gary Hill against his wife, Catherine B. Hill. An agreement between the parties was made a part of the decree. The agreement provided for custody of a child of the marriage to be placed in the plaintiff husband, although the complaint did not disclose that here were any children of such marriage. On May 12, 1972 the former wife filed a complaint entitled "Petition to Modify Decree," in which she sought custody of the child previously placed in the husband's custody, custody of a second child conceived during the marriage, but not born until November 2, 1971 and child support for both children. It was alleged that the original decree was obtained by the fraud of the husband and his attorney who was also a cousin of the husband.
The former husband filed various defenses including one which alleged a lack of venue inasmuch as his residence was in another county. A hearing was held on the sole issue of the court's jurisdiction of the case. The trial court sustained the husband's defenses, except as to the issue of fraud upon the court or the wife and "Further ordered that the award of custody of the minor children of the parties in case number 33498 was outside the issue of the divorce as presented in said case and is a subject matter which this court can now inquire into and pass upon." The judgment was certified for immediate review and the present appeal filed.
1. Had the wife only sought to obtain custody of the child previously awarded to the husband because of changed circumstances after the original decree and child support for both children, then without question the action should have been filed in the county of the husband's residence. Compare Perry v. Perry, 212 Ga. 668 ( 95 S.E.2d 2); Pirkle v. Pirkle, 212 Ga. 752 ( 95 S.E.2d 663); Martin v. Hendon, 224 Ga. 221 ( 160 S.E.2d 893). However, the present appeal involves an attack upon the original decree as having been obtained by fraud, and custody is sought, not because of changed conditions, but because she had been denied custody by the fraudulently obtained decree.
2. Was venue of the complaint in the Superior Court of Cobb County? If so, the judgment of the trial court must be affirmed and this is so whether or not the wife is entitled to any of the relief sought.
In Bugden v. Bugden, 224 Ga. 517 ( 162 S.E.2d 719), it was held that an action to modify a decree awarding alimony is a separate action and must be filed in the county of the defendant's residence under the mandate of the Constitution, Art. VI, Sec. XIV, Par. VI (Code Ann. § 2-4906) although the Act of 1955 (Ga. L. 1955, pp. 630, 631; Code Ann. § 30-220) provided otherwise. The suit in Bugden, supra, is a separate action recognizing and relying upon the original divorce action. The present action is an attack upon a part of the original decree and the court's jurisdiction is based upon the original decree having allegedly been obtained by fraud. Under such circumstances the superior court granting the decree attacked is the superior court of appropriate jurisdiction as set forth in the Act of 1966 (Ga. L. 1966, pp. 609, 662 as amended; Code Ann. § 81A-160). Compare Dixon, Mitchell Co. v. Baxter Co., 106 Ga. 180 ( 32 S.E. 24); Hood v. Hood, 143 Ga. 616 ( 85 S.E. 849), as to the proper method of attacking a judgment rendered by a court having jurisdiction of the parties and subject matter.
The judgment appealed from, which held that the trial court had jurisdiction for limited purposes, shows no reversible error.
Judgment affirmed. All the Justices concur.