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Lawskills.com Georgia Caselaw
FIELDING v. FIELDING.
30618.
UNDERCOFLER, Presiding Justice.
Custody of child, etc. Bacon Superior Court. Before Judge Hodges.
Appellant brought this action in two counts to set aside a judgment granting custody of the parties' minor child to her husband, appellee. The custody judgment was entered in the Superior Court of Bacon County by the State Court Judge of Pierce County who was designated to preside in the matter because of the illness of the senior superior court judge and the disqualification of the junior superior court judge. The instant action to set aside the custody judgment was dismissed for failure to state a claim. This appeal followed. Held:
1. Count 1 alleges the custody judgment is void because the state court judge was designated to preside in that matter due to the illness of the senior superior court judge rather than his disqualification See Lamas v. Baldwin, 128 Ga. App. 715 (197 SE2d 779) (1973). The state court judge is a member of the bar and is competent to preside when properly designated. Code Ann. 24-2625, 24-2626 (as amended, Ga. L. 1958, pp. 295, 296). See Manders v. Caldwell, 229 Ga. 326 (190 SE2d 913) (1972). The record here shows the appellant's attorney in the custody matter requested the appointment. Appellant can not complain of the appointment which she procured. Rowe v. Rowe, 228 Ga. 302 (1) (185 SE2d 69) (1971). See Robinson v. McArthur, 166 Ga. 611 (144 SE 19) (1928).
2. Appellant contends the order granting custody was obtained by fraud. The fraud specified is (1) the wilful removal of the child from the jurisdiction of a Pennsylvania court in which a divorce action was pending, and (2) the appellee's refusal to return the child to Pennsylvania after the parties agreed to a visitation period with appellee in Georgia. These are matters which were known to appellant at the time of the custody hearing and should have been raised in that proceeding.
Leon A. Wilson, II, for appellee.
Reinhardt, Whitley & Sims, Ralph F. Simpson, for appellant.
SUBMITTED DECEMBER 29, 1975 -- DECIDED JANUARY 27, 1976.
Friday May 22 07:54 EDT


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