dissenting.
I respectfully dissent to the majority’s reversal of the trial court’s decision to deny appellant’s Motion to Set Aside Judgment and grant appellee’s Petition for Divorce and custody of the couple’s minor child. The “clean hands doctrine” requires that appellant’s conduct be considered before deciding the issues of law and equity now before this Court. This is a divorce and custody action that petitioner/appellee, after a two-year separation from respondent/appellant, filed in Wilkinson County Superior Court. Appellee alleged that she could not determine the whereabouts of appellant after an extensive search through means available to her. She only knew that he was alleged to be somewhere in the city of Atlanta, Georgia. Appellee resides in Wilkinson County which is in middle Georgia.
On July 19, 1996, approximately two years and one month after the parties’ separation, appellant picked up the child in Irwinton, Georgia for a visit. Appellee had no physical address for appellant except that he lived in the suburbs. Shortly thereafter, appellee learned that appellant did not intend to return the child to her as agreed. Appellee attempted to contact appellant by every means of which she could conceive. All of appellee’s efforts to contact and locate appellant were made prior to speaking with her attorney concerning divorce proceedings. After the filing of the Petition for Divorce by Publication, appellee continued her efforts to find appellant, but was refused information from the sources she thought would likely have his address.
Upon appellee’s request for Divorce by Publication, the trial court made a finding of fact that she had exercised due diligence in attempting to find appellant and that all formalities associated with the filing and subsequent granting of a Divorce by Publication had been met as required by the law. Appellant subsequently filed a motion to set aside the judgment, alleging that respondent/appellee had not exercised due diligence in attempting to locate him. The trial court’s exercise of discretion in determining diligence will not be reversed on appeal unless it has been actually abused and cannot be supported as a matter of law. Morse v. Flint River Community Hosp., 215 Ga. App. 224 (450 SE2d 253) (1994). The trial court also found as a specific finding of fact that appellant intentionally and purposely attempted to avoid being found by appellee, and was successful in his efforts.
1. Venue. The majority opinion stated that appellee’s “petition for divorce by publication does not assert that venue is proper in Wilkinson County, nor does it assert facts that would support a finding of proper venue.” Venue was properly laid in the county of appellee when appellant, on whom service was to be made, concealed himself from being found by appellee to avoid the service of a summons. After *728hearing the facts surrounding appellee’s efforts to find appellant and a showing to the court that he was a necessary or proper party to the action, the judge had authority to establish jurisdiction over the proceeding. Venue was properly pled and established because of appellant’s own actions to conceal his whereabouts.
Insomuch as policy and clarity are concerned, this Court should not require parties unable to find necessary parties to be denied access to the courts because one party is crafty enough or wealthy enough to effectively conceal his or her whereabouts. To do so would effectively chill parties from seeking a legal resolution when marriages are irretrievably broken. It would also encourage parties not wanting the action to go into hiding, thus eliminating a more peaceful and equitable solution to the problem. Additionally, to require the petitioning party to file suit in a county which may not have jurisdiction over either party is not an exercise of judicial economy and would not only be cost-prohibitive but could preclude the parties from achieving an adequate remedy at law.
This Court should affirm the trial court’s decision and establish as a matter of policy that a party’s efforts to frustrate the administration of justice by evading service of process will not be condoned or rewarded. Having flaunted the law by succeeding in evading service, appellant should not now be permitted to seize upon it in order to legitimize his conduct.
2. Service by Publication. Appellee’s Petition for Divorce by Publication was granted in August 1996 in accordance with OCGA § 9-11-4 (e) (1) (A) which provides,
When the person on whom service is to be made . . . conceals himself to avoid the service of the summons, and the fact shall appear, by affidavit, to the satisfaction of the judge or clerk of the court, and it shall appear, either by affidavit or by a verified complaint on file, that a claim exists against the defendant in respect to whom the service is to be made, and that he is a necessary or proper party to the action, the judge or clerk may grant an order that the service be made by the publication of summons ....
Appellant went to great lengths to hide from appellee. She knew he lived somewhere in Atlanta. However, “Atlanta” could mean any of the several counties in the metro-Atlanta area, to include Fulton, Gwinnett, Cobb, DeKalb, and possibly Paulding, Douglas, and Clayton counties. As established in the motion to set aside proceeding, appellant had a Duluth address. We note that Duluth is a city in Gwinnett County. Even if appellee had known the actual address of appellant, she may not have known that his address was in Fulton *729County. Expecting a petitioner who does not know the whereabouts of the party to be served to have the burden of publishing notice of an action in every possible county where the party might reside is unreasonable. The only county clearly identifiable to appellee was Wilkinson County, the county in which the parties married and the county having legal jurisdiction over her.
Decided November 24, 1997. Hunton & Williams, Paul F. Wellborn III, Lawrence J. Bracken II, Ranee L. Craft, for appellant.*729At the time of the couple’s separation, appellee was living in Wilkinson County with her son, the subject of the custody action in the petition. Appellant was a student at the Georgia Institute of Technology. The general rule in custody issues is that the court where the parent with legal custody resides has exclusive right to award change of custody. This is true whether the legal custodian lives in another state or in another county, and despite physical presence of the child in another jurisdiction. Matthews v. Matthews, 238 Ga. 201 (232 SE2d 76) (1977). Appellee, not knowing the whereabouts of appellant, sought legal relief from the only court clearly having jurisdiction over at least two of the parties, Wilkinson County Superior Court.
The majority opinion, as written, adds confusion to the law rather than stability. If appellee could not find appellant after exercising due diligence or is prohibited from a more extensive search because of financial concerns, she could possibly be left with no legal recourse were she not permitted to bring this action in her county. Requiring appellee to find the party who is effectively eluding her efforts or be denied access to the courts is not a just result.
Additionally, by reversing the trial court’s decision, the majority opinion is in effect overruling Etzion v. Evans, 247 Ga. 390, 393 (276 SE2d 577) (1981), where this Court held that “[i]f it is in the child’s best interest that child custody be changed, the noncustodial parent must, instead of snatching that child, seek a change of custody where jurisdiction lies.” The facts presented here support the trial court’s finding that appellant intentionally refused to return the child after a visitation period and, after that, succeeded in concealing the child’s whereabouts from the legal custodian. As a general rule, equity will not grant relief to a party who comes into court with unclean hands, or is guilty of an illegal or immoral act. These rules stem from the just and salutary principle that one will not be permitted to profit by his own wrong. Fuller v. Fuller, 211 Ga. 201, 202 (84 SE2d 665) (1954).
I respectfully dissent.
Robert P. Westin, Lewis J. Patterson, for appellee.