Loggins v. Loggins , 191 Ga. 779 ( 1941 )

Upon interlocutory hearing, on conflicting evidence, a judgment awarding to the wife temporary alimony, attorney's fees, and custody of minor children is authorized. Erroneous exclusion of evidence, and a statement by the judge of the policy of the court in awarding custody of minor children to the mother as against the father unless her character is bad, in the absence of any exception to such ruling and statement and a proper assignment of error thereon in the bill of exceptions, present no questions for decision by this court, and constitute no valid attack upon such a judgment.

No. 13597. MARCH 14, 1941. Elmer Loggins sued Mrs. Elmer Loggins for divorce on alleged grounds of adultery with Newt Foster and other men, and prayed for custody of the four minor children. The defendant's answer denied the charge of adultery, and by cross-action sought divorce upon the grounds of habitual drunkenness, non-support, and cruel treatment. She prayed for total divorce, temporary and permanent alimony, custody of the four minor children, and attorney's fees. At the interlocutory hearing each party introduced the testimony of a number of witnesses which in substance supported the allegations of their respective pleadings. Stewart Oliver testified for the defendant, in substance, that he had known her during her entire life, had never seen or heard anything wrong about her, and that her reputation in the community was good; but on cross-examination he testified that he did not know her conduct since the separation, but that he had heard "rumors that she was seeing Newt Foster, and the rumors were bad." Brady Rogers, a witness for the defendant, testified that he had known her for about nine years, had never seen anything wrong with her, and thought she was a very fine woman. On cross-examination this witness testified that "since separation it was the rumor in the community that she was seeing Foster." At this point the court interrupted the examination, refused to allow further testimony concerning rumors, and stated that he would not consider the gossip of witness Oliver and would not allow further testimony as to rumors. No assignment of error on this ruling is made in the bill of exceptions. While the defendant was being cross-examined by the plaintiff's counsel, she testified that she was making $1.50 per week by washing; whereupon the court inquired of counsel if such testimony was material, and counsel stated that "it is the whole gist of the case that the only question before the court is what is best to do with the children." Then the court said: "You have not been informed of this court's policy. It is the policy of this court not to take small children away from their mother, unless the mother is of bad character." The court further stated that it considered the minors in the present case to be small children. No exception to these statements of the court is made, and no error is assigned thereon in the bill of exceptions. The pleadings of both sides were introduced as evidence. At the conclusion of the hearing the following judgment was rendered: "The above and foregoing case coming on for a hearing after having been regularly continued to this date, and after hearing evidence and argument of counsel, it is considered, ordered, and adjudged that the plaintiff, Elmer Loggins, do pay to the defendant, Mrs. Elmer Loggins, upon her cross-action the sum of $10 per month as temporary alimony beginning December 1, 1940, for the support of her and her four minor children, and the further sum of $25 as counsel fees for the defense of said suit, said sum to be paid $5per month beginning December 1, 1940. It is further ordered and adjudged that the defendant be and she is hereby awarded the custody of her four minor children until further order of this court. This 6th day of November, 1940. T. S. Candler, Judge Superior Court, N.E. C." The plaintiff excepted to this judgment. While the evidence is in conflict, it is sufficient to authorize the judge, in the exercise of the discretion vested in him by the Code, §§ 30-127, 30-206 and 74-107, to render the judgment excepted to. Counsel for the plaintiff recognizes these rules of law, and virtually concedes that the evidence would authorize the judge in the exercise of a discretion to render the judgment excepted to; but he insists that the judgment is erroneous, because the record shows that the judge failed to exercise any discretion, and based his judgment upon an erroneous conception of the law. It is sought in the brief to support this contention; first, by the ruling excluding the testimony of defendant's witnesses Oliver and Rogers, given on cross-examination, as to rumors of defendant's bad conduct. We think the court did erroneously exclude this testimony; but under the well-recognized rules this court can make no ruling thereon, for the reason that no exception was taken to the ruling of the judge, and no error is assigned thereon in the record before this court. The other argument in support of the contention of the plaintiff in error is that the statement of the court, to the effect that it was the policy of that court never to take small children from the mother unless her character was bad, shows that the court refused to consider other elements bearing upon the welfare of the children. This contention falls for the same reason; that is, no exception and no assignment of error. If it be contended that the statement of the judge was the equivalent of excluding other evidence, then, in order to authorize a review by this court, error must be properly assigned thereon in the bill of exceptions. Allen v.Kessler, 120 Ga. 319 (47 S.E. 900);Smith v. State,126 Ga. 803 (55 S.E. 1024); Smith v. Smith, 133 Ga. 170 (65 S.E. 414); Holton v. State, 137 Ga. 86 (72 S.E. 949);Browder-Manget Co. v. West End Bank, 143 Ga. 736 (4) (85 S.E. 881). The only way the statement could do injury to the plaintiff in error would be to deprive him of evidence tending to show what would be to the best interest of the children. If such evidence as he desired on this point was allowed, then he would have no right to complain, and if disallowed the proper and only way by which he could have a review in this court would be by an assignment of error thereon in the bill of exceptions. The judgment recites that it was rendered "after hearing evidence and argument of counsel" and thus it appears that in rendering the judgment the judge gave consideration to all the evidence that was then in the case. Therefore, since there is evidence to support the judgment, and the only attacks thereon are without merit, it must be affirmed.

Judgment affirmed. All the Justicesconcur.