DOVER v. DOVER

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Docket Number

16619.

Attorney(S)

William Butt, for plaintiff in error. T. H. Crawford and Henderson Burtz, contra.

Judges

WYATT, Justice.

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Smart Summary

Factual and Procedural Background

In a divorce proceeding before the Fannin Superior Court, a final decree was entered on December 15, 1948, ordering the husband to pay alimony to his wife of $50 per month so long as she remained single, and an additional $50 per month until a total of $800 was paid, representing the amount the wife expended in constructing a home on the husband's mother's property. On January 28, 1949, the husband filed a motion to modify the decree. A rule nisi was issued at chambers in Canton, Georgia, requiring the wife to show cause at a hearing in Blue Ridge, Georgia, on February 4, 1949. After the hearing, the court modified the decree by removing the $800 payment from the alimony allowance. The wife excepted to this modification, arguing the court lacked jurisdiction to alter the decree based on the motion filed and rule issued at chambers in a different county.

Legal Issues Presented

Whether the superior court judge had the authority to modify or alter the alimony decree during the same term at which it was rendered.
Whether the issuance of a rule nisi and hearing held at chambers in a different county affected the court's jurisdiction or the validity of the modification order.
Whether the modification of the decree regarding the $800 payment was proper and supported by sufficient evidence.

Arguments of the Parties

Wife's Arguments (Plaintiff in Error)

The court lacked authority to modify or alter the decree on February 4, 1949, because the motion and rule nisi were submitted and issued at chambers in Canton, Georgia, not in the county where the original decree was entered.
All subsequent proceedings following the chambers order were nugatory due to lack of jurisdiction.

The opinion does not contain a detailed account of the husband's arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Haskins v. State, 114 Ga. 837, 40 S.E. 997	Superior court judge lacks authority to entertain or render judgment on a motion to set aside a judgment during vacation.	Established that a judge cannot act on such motions in vacation, but the court here found the modification was made during term time, so this limitation did not apply.
U.S. Fidelity Guaranty Co. v. First National Bank, 149 Ga. 132, 99 S.E. 529	Same principle as Haskins regarding jurisdiction during vacation.	Supported the limitation on jurisdiction during vacation; distinguished here as the modification was during term.
Gaines v. Gaines, 169 Ga. 432 (1), 150 S.E. 645	Court’s plenary control over its judgments during the term, including revising or modifying orders.	Confirmed that the court had authority to modify the decree during the term in which it was entered.
Lawson v. Haygood, 202 Ga. 501 (3), 43 S.E.2d 649	Further support for court’s plenary control and discretion to modify judgments during term.	Reinforced the court’s power to modify its judgments within the term.
Athens Apartment Corp. v. Hill, 156 Ga. 437 (1), 119 S.E. 631	Court may exercise power to modify judgments at the same term on its own motion without notice.	Supported the validity of the modification even without notice to parties.
Jones v. Garage Equipment Co., 16 Ga. App. 596, 85 S.E. 940	Same principle as Athens Apartment Corp.	Supported discretionary modification during term.
Waller v. State, 164 Ga. 128, 138 S.E. 67	Judicial cognizance that Superior Court of Fannin County convenes on second Mondays of April, August, and December.	Used to determine that the December term continued until shortly before the next term, so the modification was timely.
Mathis v. Crowley, 146 Ga. 749, 92 S.E. 213	Definition of term length: a term continues until adjourned or by operation of law.	Supported the conclusion that the court retained jurisdiction during the time the modification was made.
Butters Manufacturing Co. v. Sims, 178 Ga. 775 (2), 174 S.E. 623	Assumption that orders are passed in term time unless the contrary appears; court may revoke prior judgments during term.	Supported the presumption that the modification order was entered during term and was valid.
Revels v. Kilgo, 157 Ga. 39, 121 S.E. 209	Even if a motion is improperly entertained in vacation, a final judgment rendered in term time is valid.	Analogous to this case where the motion was initiated at chambers but judgment rendered during term, thus validating the order.

Court's Reasoning and Analysis

The court first recognized the established principle that a superior court judge cannot entertain motions to set aside judgments during vacation, but emphasized that the court retains plenary control over its judgments during the term at which they were rendered. The court took judicial notice of the Fannin Superior Court’s term schedule, concluding that the December 1948 term continued through early April 1949, thus including the February 4, 1949 modification date.

Because there was no indication that the modification order was entered during vacation, the court presumed it was entered during term time, making the modification valid. The court further held that even though the motion and rule nisi were submitted and issued at chambers in a different county, this procedural irregularity did not deprive the court of jurisdiction since the hearing and judgment occurred during term. The court analogized this to prior precedent where a motion improperly entertained in vacation was cured by a judgment rendered in term time.

Finally, the court found sufficient evidence to support the trial judge’s determination that the $800 payment was inadvertently included as alimony in the original decree and that modifying this was within the judge’s discretion and not an abuse thereof.

Holding and Implications

Judgment affirmed.

The court held that the superior court judge had valid jurisdiction and authority to modify the alimony decree during the same term in which it was rendered, including the power to remove the $800 payment from the alimony award. The procedural irregularity of issuing the rule nisi at chambers in a different county did not invalidate the order, as the hearing and judgment occurred during term time. The decision directly affects the parties by upholding the modification of the alimony decree but does not establish new legal precedent beyond reaffirming existing principles regarding term jurisdiction and judicial control over judgments.

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DOVER v. DOVER.

WYATT, Justice.

In a divorce case in Fannin Superior Court, a final decree was entered on December 15, 1948, providing in part that the husband should pay alimony to his wife in the sum of $50 per month so long as she remained single, and further that he should pay his wife $50 per month until she had been paid the sum of $800, "the amount expended by her in the construction of the home located upon the property of the mother" of the husband. On January 28, 1949, the husband submitted to the court a motion to modify and alter the decree, and a rule nisi issued "at chambers, Canton, Georgia," requiring the wife to show cause at Blue Ridge, Georgia, on February 4, 1949, why the prayers of the petition should not be granted. After a hearing, as provided in the order, at Blue Ridge, Georgia, the court passed the following judgment: "After hearing evidence and argument in the within motion, it is ordered that that part of said decree which alludes to the payment of $800 in the construction of said house be modified to the extent that same is not a part of the alimony allowance for support of wife and children and should not be enforced as such. This February 4th, 1949." In excepting to this judgment, the wife, as plaintiff in error, contends "that the court was without authority in law to modify or alter said decree on the 4th day of February, 1949, for the reason that he took jurisdiction of this matter on the motion of the plaintiff at chambers at Canton, Georgia, as shown positively by his order, and this being true, everything that followed was nugatory." Held:

1. While this court has held that a judge of the superior court has no authority to entertain in vacation a motion to set aside a judgment of that court and is without jurisdiction to render judgment on such a motion in vacation ( Haskins v. State, 114 Ga. 837, 40 S.E. 997; U.S. Fidelity Guaranty Co. v. First National Bank, 149 Ga. 132, 99 S.E. 529), it is well-settled law that a court has plenary control over its judgments, orders, and decrees during the term at which they were made, and, in the exercise of a sound discretion, may revise, revoke, or modify them. Gaines v. Gaines, 169 Ga. 432 (1) ( 150 S.E. 645); Lawson v. Haygood, 202 Ga. 501 (3) ( 43 S.E.2d 649). This power may be exercised by the court, at the same term, on his own motion without notice to either party. Athens Apartment Corp. v. Hill, 156 Ga. 437 (1) ( 119 S.E. 631); Jones v. Garage Equipment Co., 16 Ga. App. 596 ( 85 S.E. 940).

2. This court will take judicial cognizance of the fact that the Superior Court of Fannin County convenes each year on the second Mondays in April, August, and December. Waller v. State, 164 Ga. 128 ( 138 S.E. 67). "After a general term of the superior court has been organized by the presiding judge and put into operation, the term continues until finally adjourned by the presiding judge or by the operation of . . law." Mathis v. Crowley, 146 Ga. 749 ( 92 S.E. 213). Accordingly, unless adjourned, the December term of the Superior Court of Fannin County, at which the original divorce and alimony decree was entered. continued until five days before the commencement of the April term. Code, § 24-3010.

3. There is nothing in the judgment excepted to nor in the record indicating that the order of February 4, 1949, was passed in vacation. "The contrary not appearing, it is assumed that both orders were passed in term time. The former judgment being in the breast of the court, it was within his power and authority to revoke it by the subsequent order." Butters Manufacturing Co. v. Sims, 178 Ga. 775(2) (174 S.E. 623).

4. In view of the board power of a judge during the term to modify or revoke a decree entered during the term, even on his own motion without pleadings and without notice to the parties, the fact that the motion to modify the decree was submitted to the judge, and a rule nisi issued thereon, at chambers, in a county other than that in which the original decree was rendered, would not affect the validity of the final order passed in term time. Assuming, but not deciding, that the judge was without authority to entertain the petition and issue a rule nisi at chambers in another county, since the hearing of the motion was had, and the judgment was rendered, in term time, the proceeding became a matter in term; and if the original proceeding erroneously commenced, it was duly adopted by the judge in term time, and was thus given full efficacy. See Revels v. Kilgo, 157 Ga. 39 ( 121 S.E. 209), where the judge, without authority, entertained a motion to set aside in vacation and issued a rule nisi thereon, but the final judgment was rendered in term time.

5. There was sufficient evidence from which the judge was authorized to find that the original consent decree was inadvertently entered as to the $800 payment, insofar as this sum was awarded as part of the alimony; and the trial judge did not abuse his discretion in rendering the judgment complained of.

Judgment affirmed. All the Justices concur.

No. 16619. MAY 10, 1949.