Fuller v. Fuller , 197 Ga. 719 ( 1944 )

1. The office of a suggestion of a diminution of the record in a case is to perfect the record in the Supreme Court so that it may correspond in all particulars with the original on file in the office of the clerk of the trial court. Clark v. State, 110 Ga. 911 (36 S.E. 297); Stepp v. Stepp, 195 Ga. 595 (25 S.E.2d 6). A motion by the defendant in error, denominated by him "objections to the bill of exceptions," and also as one suggesting "a diminution of the record," must be denied, where no portion of any omitted record is pointed out, and it is not averred that an approved brief of the evidence had been filed, but only averred that the evidence was not set out in the bill of exceptions, and where such motion contains only a prayer that this court delay consideration of the case until the trial judge can prepare "and send to this court a supplemental certificate to the bill of exceptions, supplying the evidence withheld, and correcting the original bill of exceptions."

2. A final decree in a divorce case, awarding the custody of the minor children to one or the other of the parties thereto, is conclusive as between the parties as to the right of such custody, unless a change of circumstances affecting the interest and welfare of such children is shown.

(a) This is true although the decree, after specifically awarding such custody, is immediately followed by the sentence, "subject to the further order of this court."

3. A petition by a father, reciting that in such a divorce decree the custody of the minor children had been awarded to the mother, and praying for a modification of the decree to the extent that he be granted the privilege of being with his children at least two afternoons each week, during reasonable hours to be designated by the court, and that, during vacation periods, he be granted the entire custody of such children for such periods and at such time as the court might deem fit and proper provided, of course, that he has a suitable place for their safe-keeping custody, and safeguarding, was subject to dismissal upon oral motion. on the ground that the facts set out did not warrant the modifying of the original decree awarding custody, and that no cause of action was set out in said petition.

(a) The trial judge having erred in failing to sustain the motion to strike, it was also erroneous, on the hearing, to enter an order modifying the original decree so as to permit the father and his mother to have the joint custody of the children at certain times weekly.

No. 14849. JUNE 7, 1944. Mrs. Ruby M. Fuller filed in Chatham superior court an action for divorce against Robert W. Fuller, which resulted in two verdicts granting her a divorce. On August 8, 1941, a decree was entered, giving effect to these verdicts, and containing the further provision that "the custody of the children, Mary Elizabeth Fuller and Robert Wesley Fuller Jr., be awarded to petitioner, Mrs. Ruby Morrison Fuller, subject to the further order of the court." The bill of exceptions recites that "on November 15th, 1943, the defendant in the foregoing case, Robert W. Fuller, filed in the superior court of Chatham County, Georgia, his petition against Mrs. Ruby Morrison Fuller, wherein he set out certain facts and prayed that the decree of the court in the divorce case be modified and changed so that he could have the custody of the children of the parties in the case at certain times. Be it further remembered, that the said Mrs. Ruby Morrison Fuller responded to said petition, and upon the hearing of the issue thus formed, and before the final judgment was entered, through her counsel she then and there orally moved to strike and dismiss the petition asking for the modification of the original divorce decree, upon the ground that the facts set out in said petition did not warrant nor support, nor legally justify the court in modifying said decree, and that no cause was set out in the petition thus filed by him." It is further recited in said bill of exceptions that "the court on the 18th day of January, 1944, during the hearing of said case, then and there overruled and denied said oral motion thus made by counsel for the said Mrs. Ruby Morrison Fuller to dismiss and strike said petition. To this judgment and decision of the court overruling and denying the oral motion to dismiss and strike said petition to modify said divorce decree, the said Mrs. Ruby Morrison Fuller, plaintiff in error herein, then excepted, now excepts and assigns the same as error upon the ground that the same was contrary to law. Be it further remembered, that on the said 18th day of January, 1944, at the conclusion of the hearing the court then and there entered an order modifying the original divorce decree, and awarded the custody of the children at certain times to the petitioner and his mother jointly. To the action of the court in thus modifying the original divorce decree and awarding the custody of the children at certain times to the petitioner, Robert W. Fuller, and his mother, plaintiff in error, Mrs. Ruby Morrison Fuller, then excepted, now excepts and assigns the same as error upon the ground that the same is contrary to law and as not justified by the pleadings in this case."

Although the bill of exceptions contains the words, "and upon the hearing of the issue thus formed," and in another place therein, the words, "at the conclusion of the hearing," there is no evidence incorporated in the bill of exceptions or attached thereto as an exhibit, there is no recital that there was a brief of the evidence approved and filed as a part of the record. The only parts of the record specified as material, and certified to be such by the trial judge, are the pleadings, and the following judgment, to wit: "The foregoing case coming on to be heard, and after evidence having been submitted, it is the judgment of the court that the mother of the movant and the movant have the joint custody of the two minor children between the hours of 12 noon on Saturday, and 7 p. m. Sunday, and the mother of said movant shall return them to the home of the defendant not later than the next day (Sunday) at 7 p. m."

After the case reached this court, counsel for the defendant in error filed with the clerk a paper denominated by him in the caption as "objections to bill of exceptions and motion." The body thereof commences as follows: "And now comes the defendant in error and files this his objections to the bill of exceptions and asks a diminution of the record as set out in the rules of said court and in the Code of Georgia, annotated, chapters 6-810 (4), 24-4508, and 6-1403, for the following reasons."

The motion is divided into seven paragraphs. The first is to the effect that the statement in the bill of exceptions certified to be true by the trial judge to the effect that an oral motion was made to dismiss and the court overruled the same, was an incorrect statement. The second is, that evidence was offered, and on that evidence the court decided that a slight modification should be made in the original decree so as to permit the father to be with his children over the week-ends; and that when the court so decided, no objections were filed thereto until the present bill of exceptions was tendered, counsel for the defendant in error not knowing the contents of the same, and that he acknowledged service thereon with the reservation that the bill of exceptions was incorrect. The third is, that both the court and counsel for the defendant in error know that a decree in a divorce case, awarding custody of the children, was conclusive unless the status was changed. The fourth is that the divorce action was based on service by publication, and the defendant in error did not know of the decree until long after the same was rendered. The fifth sets out evidence which the movant feels should be incorporated in the record. It sets forth changes affecting the condition of the father, but no new and material conditions and circumstances substantially affecting the interest and welfare of the children. The next and seventh paragraph is as follows: "The court is therefore requested that it delay its consideration of said case until the learned judge of the lower court is permitted to prepare and to send to this court a supplemental certificate to the bill of exceptions, supplying the evidence withheld and correcting the original bill of exceptions, and the clerk of the superior court is authorized to forward the same to this court to be considered as part of the original bill of exceptions, in order that this court might have the complete facts and record, instead of the present streamlined and somewhat inaccurate synopsis." 1. The ruling in the first headnote, read in connection with the statement of facts, need not, we apprehend, be discussed.

2. It has a number of times been decided by this court that a decree of divorce, in which the custody of a minor child is awarded to one of the parties, is conclusive as between the parties to such decree as to the right of that parent to the custody of the child, unless a change of circumstances affecting the interest and welfare of the child is shown. Sells v.Sells, 172 Ga. 911 (159 S.E. 237); Brooks v. Thomas,193 Ga. 696 (19 S.E.2d 497), and the prior rulings there cited. It would seem to logically follow that if a petition in such a case is filed, seeking such change of custody, but without alleging a change of circumstances affecting the welfare of the child, an oral motion to dismiss the same should be sustained, since all defects which appear on the face of the pleadings may be taken advantage of by the motion (Code, § 81-302), and an oral motion to dismiss is in the nature of a general demurrer. Weathers v. McFarland, 97 Ga. 266 (22 S.E. 988); Brown v. Georgia, Carolina c. Ry. Co.,119 Ga. 88 (46 S.E. 71); Rountree v. Finch, 120 Ga. 743 (48 S.E. 132); Dingfelder v. Georgia Peach Growers Exchange,184 Ga. 569 (192 S.E. 188). In a suit by the father against the mother to recover custody of a child awarded to the mother in a decree of divorce, it was held that the petition was properly dismissed on general demurrer, when it did not show such a change in conditions affecting the welfare of the child as would authorize the opening or modification of that judgment. Shields v. Bodenhamer, 180 Ga. 122 (178 S.E. 294). In the case cited, as in this case, a change in the condition of the father was shown, the children had grown older, and the father was now able to maintain a home in which the children could and would receive proper treatment; but it was held that none of these facts were sufficient to withstand a general demurrer. The petition in the instant case is likewise fatally defective for the same reason, and the trial judge erred in not sustaining the motion to dismiss, and in entering the final order shown in the preceding statement, on the ground that the same was contrary to law and was not justified by the pleadings in the case.

The inclusion in the original decree of the words, "subject to the further order of this court," does not make the authorities heretofore referred to inapplicable. Coffee v. Coffee,101 Ga. 787 (28 S.E. 977), Wilkins v. Wilkins, 146 Ga. 382 (91 S.E. 415), and Torras v. McDonald, 196 Ga. 347 (26 S.E.2d 598), each dealt with a decree fixing the amount of permanent alimony. The intimation in the first two of these last three cases, that the judge might have authority to modify it if the power so to do was reserved in the decree, was, by a unanimous bench in Gilbert v. Gilbert 151 Ga. 520, declared to be obiter, there being no such power reserved in either of the decrees there involved. The same is true as to Torras v.McDonald, supra. In Willingham v. Willingham, 192 Ga. 405 (15 S.E.2d 514), the decree contained a similar clause, to wit, "until further ordered." This court held that it was "a permanent adjustment of the custody of the children upon the facts as they existed at the time it was entered. The clause `until further ordered' did not deprive the order of its finality. See Scott v. Scott, 154 Ga. 659 (2) (115 S.E. 2)."

There is another line of reasoning, not antagonistic to anything above presented, which if followed would lead to the same result, and that is this: Carpenter v. State, 195 Ga. 434 (24 S.E.2d 404), was an instance where it was sought to permit the reopening of a building closed by a decree as a nuisance under the Code, § 72-309. The decree declared, not that the premises should be kept closed for any definite period, but merely that they should be closed, and not opened "pending the further order of the court." We quote from the opinion in that case as follows: "It is insisted that the judge thus reserved discretion `to reopen said houses at any time,' and that he should therefore have considered the petition as an appeal to his discretion instead of dismissing it for insufficiency as a matter of law. As may be noticed, the petition did not seek a modification on the ground that the abatement as adjudged was not limited to one year; but in this respect it was addressed solely to discretion of the trial judge as to whether he would modify the order at this time on the facts appearing, the period of one year not having expired. The petition did not show any cause for relief, even on this theory. If the judge had a discretion, under either the statute or the judgment, to allow the building or buildings reopened within less than one year on petition of the defendant, it was not an arbitrary discretion; and before he could properly exercise any discretion in such matter, some new fact or condition materially affecting the public interest should be introduced." So here it could be said that in no event did the inclusion in the decree of the words, "subject to the further order of the court," give to the judge any arbitrary discretion, and that, before he could exercise it, some new fact or condition materially affecting the welfare of the children should be shown.

The modification of the original decree in the instant case, both as sought in the petition and as granted by the judge, was one that affected the mother's right to the custody of the children, because the petition sought and the order entered thereon granted to the father for a part of the time the exclusive custody of the children. Therefore the case does not present the question as to the right of the father to visit his children at a particular time and place, even though the court had the authority to grant him such right, although such privilege was not awarded him in the original decree. As to the propriety of securing to one parent this right when the custody of the child is awarded to the other, see the concluding portion of the opinion in Scott v. Scott, supra.

Although the petition alleges in substance that the mother has poisoned the minds of the children against the father, there is no allegation that the mother acted any differently before and at the time of the rendition of the original decree. If a change of condition of this nature had been shown, then the question would have been presented whether a court would have been authorized to modify the decree in the particulars sought, on the ground that such a change was one that materially affected the interest and welfare of the children. It could be forcibly urged that for another to implant in the mind of an immature child the idea that he must not love his father, that the latter is unworthy of such affection, is a matter of serious import, the tendency of which would be to deprive a child of that affection, confidence in, and respect which he should have for his father; and to deprive such child, particularly a male child, of the hope that at sometime or other he might have the companionship of his father, and the latter's guiding hand. In God's economy a child has to have a father, and this is not merely that there be some one to provide the former with food, raiment, and shelter. There are certain intangible benefits besides these which every normal child is entitled to receive from his father, growing out of the relationship, which can not be furnished when the child is poisoned against the parent. These intangibles spring from affection, mutual affection, and have no existence when the child is made to believe that his father is unworthy of his love. Is it to the interest and welfare of the child that he should grow up under the belief that, unlike most other children, his own father if appealed to, could not be trusted to suggest, advise, and admonish him in the light of his own knowledge and experience? That his own father was unworthy of his love and confidence, or even his respect? Would not the implanting of such a view ordinarily have a tendency to cause a child embarrassment and tend to cause him to develop abnormally?

We have thrown out these suggestions with a view of calling attention to the fact that in reversing the judgment we are adjudicating merely that it is not made to appear that there was any change of condition. We do not have for decision the question whether or not the facts as pleaded show a condition materially affecting the interest and welfare of the children.

Judgment reversed. All the Justices concur.