Waller v. Waller , 202 Ga. 535 ( 1947 )

Under the evidence in this case the trial judge did not abuse his discretion in awarding custody of the minor children for a limited time during each year to the mother.

No. 15870. JULY 11, 1947. On January 13, 1942, C. A. Waller filed suit in Fulton Superior Court against Mrs. Connie Waller, seeking divorce and custody of their three minor children, alleging that the defendant was "not a fit and proper person to have the children in her custody." On February 2, 1942, the defendant filed an answer and cross-petition, seeking temporary alimony and custody of the children. On the same date the trial judge entered an order, upon the consent of the parties, awarding the custody of the children to the plaintiff, with the right on the part of the defendant to visit the children at any reasonable time and to have them with her on occasional week-ends. On October 6, 1942, the plaintiff obtained a first verdict in his divorce case against the defendant. On the same date the defendant filed a motion seeking the permanent custody of the children and funds to support them. On November 3, 1942, the judge then presiding modified the order of February 2, 1942, as follows: "The children of the parties are now temporarily at the home of the defendant. So long as they remain with the defendant the plaintiff is to send to defendant $7 per week for their support. In addition, he will also provide necessary clothing and medical expenses. The custody of the children as heretofore fixed is not changed by this order, but the question of final custody will be determined at the time of the trial of the divorce case on second verdict." On January 21, 1943, the plaintiff secured a final verdict of divorce, containing a similar provision in regard to the plaintiff supporting the children while they were not in his custody. The decree awarded permanent custody of the children to the plaintiff.

On January 14, 1947, the plaintiff filed a petition, alleging that the custody of the three minor children had been awarded to him on January 21, 1943; that two of the children were still minors, the third having obtained his majority; that the defendant had possession of the children and refused to deliver them to him; that the conditions under which the children were living were injurious to them; and seeking an order directing that the children be delivered to him. The order was granted on January 14, 1947, and on the following day the children were delivered to a deputy sheriff for delivery to the plaintiff. On February 22, 1947, the defendant filed a motion seeking permanent custody of the children. The motion came on for hearing before Honorable Virlyn B. Moore, Presiding Judge of Fulton Superior Court, on April 7, 1947.

The plaintiff introduced in evidence an affidavit by the older of the two girls, Joyce Waller, at that time 14 years of age, in which she stated that during the time she and her sister lived with her mother, her mother had immoral relations with men, and named particularly Ernest Pritchett, with whom she alleged her mother, had immoral relations, and with whom the affiant, at the instance and insistence of her mother, also had immoral relations over a period of about six months.

Dr. William J. Pendergrast testified that he had examined the child, Joyce Waller, and had interviewed her. She told him that she was subjected, at the request of her mother, to intercourse with one of the men who visited her mother. The witness stated that from his examination he would conclude that it was possible that the girl could have had sexual relations. On cross-examination, he stated that he could not tell whether the condition of which he testified had arisen during the time that she was with her mother, or whether it had arisen in the three or four months since she had left her mother.

The defendant introduced her mother as a witness to show that she had taken care of the children to the best of her ability during the time that they were with her. She also submitted the affidavits of a number of people living in Thomaston (the town where she had kept the children), stating that they knew the defendant, that she had taken good care of her children, had sent them to school and to Sunday School, and that they knew of no immoral conduct on her part. Among the persons making similar affidavits was the Chief of Police of Thomaston, who had lived in the house next to the defendant for approximately two years. The affidavit of Jesse Jackson stated: That he had rented premises in his house to Mrs. Connie Waller, and she had lived there for the past two years. During that time he was in and out of the house at all times and had an opportunity to observe Mrs. Connie Waller and her two children. From his observation, Mrs. Waller was a devoted and attentive mother, and he never saw any action on the part of Mrs. Waller which was detrimental to the children, nor any conduct on her part which was immoral. Mrs. Waller was a member of the Shiloh Baptist Church, of which the deponent was also a member; and the children were sent to Sunday School.

The defendant, Mrs. Connie Waller, testified: That she had taken care of the children until January, 1947, at which time her husband came for them and took them away. She has not been able to contact them or see them since that time. She does not understand the charge that her daughter makes about having relations with a man. She has never been a party to her daughter having relations with a man, or suggested that to her, and it did not happen so far as she knew. She has not had immoral relations with Ernest Pritchett, or a man by the name of Adams. The only way that she knew Ernest Pritchett was that he worked at a dry-cleaning plant, and had picked up dry cleaning from her.

The plaintiff, C. A. Waller, testified: That he did not know anything of his own knowledge about the condition that his children lived in while with their mother. They told him that they lived in one room, cooked, ate and slept there. The child Joyce told his wife about the matters related in her affidavit, and he took her to a doctor to have her examined.

After hearing the evidence, the judge entered an order reciting that the defendant had abandoned her claim for permanent custody, and was asking only that the children be allowed to visit her for one month each year, and further providing: "It is hereby ordered, considered, and adjudged that no change be made in the permanent custody of the children heretofore fixed by this court. Further ordered, that the defendant shall be given the children in August of each year, plaintiff to pay all transportation to and from defendant's residence in State of Georgia and the upkeep of the children during such stay not exceeding $7 per week."

The exception here is to that part of the judgment awarding custody of the children to their mother during the month of August. 1. In every case where the custody of minor children is involved, our law requires that the court having jurisdiction shall exercise a discretion in awarding the custody. Code, §§ 30-127, 50-121, 74-106, 74-107.

This court has repeatedly held that in all cases involving the custody of minor children, the paramount issue is the welfare of the children. However, where the custody of minor children is awarded to one of the parties in a divorce case by the final decree, the judge may thereafter exercise a discretion as to the custody of the children only in so far as there may be a change in material conditions and circumstances substantially affecting the interest and welfare of the minor children. Kniepkamp v.Richards, 192 Ga. 519 (16 S.E.2d 24); Fortson v.Fortson, 195 Ga. 755 (25 S.E.2d 518); Fuller v.Fuller, 197 Ga. 719 (30 S.E.2d 600).

In this case, it appears that in a divorce action between the parties the temporary custody of the minor children involved was awarded to the husband in February, 1942. Thereafter the wife filed a petition in which she alleged that the husband had abandoned the children and left them in her care, and she prayed that he be required to contribute to their support. In November, 1942, the court passed an order requiring the husband to pay to the wife $7 per week for their support, and to provide clothing and medical expenses. In the final decree entered in January, 1943, the court provided that the plaintiff in error should continue to pay $7 per week and provide necessary clothing and medical expenses as long as the children remained in the custody of the wife or until they became of age or married. It further appears that the wife and mother remained in temporary custody of the minor children from 1942 until January, 1947, or approximately five years. By evidence offered by the plaintiff in error, it appears that he had remarried prior to the order issued in January, 1947, authorizing him to take custody of the minor children.

This court will not hold, as a matter of law, that actual custody by the wife and mother of minor children for approximately five years after their custody had been awarded to the husband and father, and the remarriage of the father, are not such new and material conditions or circumstances as would authorize the judge to award custody of the children to the mother for the month of August in each year, in lieu of the right of the mother to visit the children at any time in the home of the father. Compare Atkinson v. Atkinson, 160 Ga. 480 (128 S.E. 765); Abernathy v. Abernathy, 165 Ga. 208 (140 S.E. 382).

The plaintiff in error contends that the evidence offered by him demanded a finding that the mother was an unfit and improper person to have custody of the minor children for any period of time.

While the evidence offered for the plaintiff against the mother, if believed by the court, and if uncontradicted by evidence as to her good character and proper care of the children, would support such a finding, the evidence offered is so unusual and contrary to every natural impulse of a mother, as to be almost unbelievable. The evidence offered by the mother, if believed, was sufficient to disprove the charges made. The trial court had the parties before him. He could observe their conduct, and their method and manner of testifying. Therefore, if under the evidence we entertained any doubt as to the correctness of the judgment here complained of, that doubt would have to be resolved in favor of the judgment rendered by the trial judge, since he was in possession of information from his observation of parties and witnesses that could not appear in the record before this court.

The contention of the plaintiff in error that his evidence demanded a judgment refusing custody to the wife at any time is without merit.

2. The contention is further made that the evidence for the plaintiff in error, charging the wife with misconduct and illicit relations with a named individual, required the wife, under the Code, § 38-119, to procure evidence from such individual that the charge was not true. This contention requires nothing more than that we hold, as we do, that it is without merit.

Judgment affirmed. All the Justices concur.