Ponder v. Ponder , 198 Ga. 781 ( 1945 )

1. It is the general rule that, where two courts have concurrent jurisdiction over a subject-matter and the parties, the court first taking jurisdiction will retain it unless some good reason be shown for equitable interference. Code, § 37-122; Morrison v. McFarland, 147 Ga. 465 (2) (94 S.E. 569). While the ordinary and the judge of the superior court have equal and concurrent jurisdiction in determining the custody of the children of husband and wife living in a state of separation so far as habeas-corpus proceedings may be resorted to, it is only the judge of the superior court who has jurisdiction of such subject-matter when related to a suit for divorce, and the judge of that court who, after a habeas-corpus proceeding before the ordinary, acquires jurisdiction of the subject-matter in a divorce proceeding, may properly enjoin further progress of the former proceeding before the ordinary, in order that all questions raised by the divorce suit may be considered together. Duke v. Duke, 181 Ga. 21 (181 S.E. 161).

2. In awarding the custody of the children, as related to a divorce action, it is furthermore true that, even though a previous judgment may have been rendered in a habeas-corpus proceeding, the judge of the superior court is vested by the Code, § 30-127, with plenary powers, and "shall not be hampered by any former decree or judgment in a habeas-corpus case." Zachry v. Zachry, 140 Ga. 479 (79 S.E. 115); Duke v. Duke, supra. Accordingly, where, after the custody of a child has been awarded to the mother in a habeas-corpus proceeding before the ordinary, she thereafter brings suit for divorce, and in her petition asks, as a part of that proceeding, that the custody of the child be awarded to her, and where in that proceeding a divorce is granted to her, the judge of the superior court which grants the divorce has plenary powers over the custody of such child (Black v. Black, 165 Ga. 243 (4), 140 S.E. 364), and may in the exercise of a sound discretion make an award thereof, under the authority conferred by the Code, § 30-127, independently of, and unfettered by, any prior judgment or award under the habeas-corpus proceeding.

3. The judge of the superior court granting the divorce is not only vested with such plenary authority in awarding custody of the child under the Code, § 30-127, but has continuing jurisdiction over that subject-matter, in the event it should later be made to appear that there has been a subsequent change of circumstances materially affecting the welfare of the child. Sells v. Sells, 172 Ga. 911 (159 S.E. 237); Kniepkamp v. Richards, 192 Ga. 509, 510 (6 a) (16 S.E.2d 24); Fortson v. Fortson, 195 Ga. 750 (2), 757 (25 S.E.2d 518); 27 C. J. S. 1162, § 303. Whether or not, for the purpose of enforcing certain mandates imposed upon the one awarded the custody of the child, the court could by order retain jurisdiction of the case for the purpose of altering its award under the same state of facts as existed at the time the award was made, has been left an open question. Girtman v. Girtman, 191 Ga. 173, 179 (11 S.E.2d 782).

(a) The writer, speaking for himself only, is of the opinion that such jurisdiction not only continues in the judge of the superior court, but that his jurisdiction ought to be, and therefore in, exclusive, and his judgment should not in effect be subsequently modified by another court; and that the only proper recourse to a habeas-corpus proceeding would be to enforce an outstanding judgment of the superior-court judge which has been violated. In other words, another court should not be permitted in effect to modify a judgment which it was powerless to render in the first instance. But see, in this connection, Williams v. Crosby, 118 Ga. 296 (45 S.E. 282).

4. The judge of the superior court which has granted the divorce thus having continuing jurisdiction by virtue of the divorce proceeding, it is furthermore the rule that, even though he may not have disposed of the question of custody at the time the divorce decree was entered, he can nevertheless, in the exercise of his plenary powers as judge of the court which granted the divorce, thereafter, upon application of one of the parties, and upon proper notice to the other party, adjudicate the proper custody of the children, and in doing so would have jurisdiction over the parties to the divorce suit, and would be unhampered by any judgment obtained in a prior habeas-corpus proceeding. The wife's petition asked for two things: a divorce, which would have to be granted by a jury; and the custody of the child, which would have to be awarded by the court. The two prayers together constitute the relief sought. The granting of the divorce under the verdict of the jury did not dispose of the pending petition for the custody of the child. This appears to be the general and practically universal rule. See 27 C. J. S. 1165, § 306. Especially would this be true, where, as here, at the time the divorce decree was rendered, the judge announced in open court that the matter of awarding the custody of the child would be determined later. Of course, if the award was not made in connection with and as a part of the divorce proceeding, but in an ordinary habeas-corpus proceeding, the rule would be otherwise, and the doctrine of res judicata would apply, unless the conditions under which the former judgment was rendered are shown to have changed. See Crowell v. Crowell, 191 Ga. 36 (11 S.E.2d 190).

5. Under the foregoing rulings, the judge of the superior court which had granted the divorce did not abuse his discretion, given under the Code, § 30-127, in subsequently awarding the custody of the child to the father.

Judgment affirmed. All the Justicesconcur.

No. 15042. JANUARY 6, 1945. On September 13, 1940, Mrs. Nonene Ponder filed in the court of ordinary of Wheeler County, Georgia, a petition for a writ of habeas corpus, seeking the custody of her infant son, then in the custody of his father, S.C. Ponder, in which proceeding an order was entered, making the terms of an agreement, entered into between the parties and giving the custody of the child to the mother, the judgment of the court of ordinary, all on September 13, 1940. On October 2, 1940, Mrs. Ponder filed a petition in Tattnall superior court against S.C. Ponder, asking for a divorce from the defendant and seeking the custody of said minor son. On April 20, 1942, the second verdict and decree of divorce based thereon were entered, but no order was made dealing with the question of custody, the judge announcing in open court that the matter of awarding the custody of the child would be determined later. On June 26, 1944, Ponder filed in the superior court of Tattnall County the following petition addressed to said court and to the judge thereof: "1. That he is a resident now of Evans County, Georgia, and that Mrs. Nonene Purvis Ponder is a resident of Wheeler County, Georgia. 2. That said Mrs. Nonene Purvis Ponder, while the petitioner was a resident of Glennville, Tattnall County, Georgia, filed her petition for divorce and alimony in the superior court of Tattnall County, Georgia. That the said Mrs. Nonene Purvis Ponder asked that the possession, custody, and control of the minor child, the issue of their marriage, be awarded to her, and the said S.C. Ponder also prayed that the custody be given to him. 3. That at the regular April-1942 term of Tattnall superior court and on April 29, 1942, a final verdict for total divorce and permanent alimony was rendered, the jury awarding the sum of $10 per month as alimony for Mrs. Ponder and the sum of $25.00 per month as the amount of alimony for the support of their minor child, Purvis Ponder. A final decree was accordingly entered in said case on April 20, 1942. The said defendant, S.C. Ponder, filed his motion for new trial which was passed on by the Hon. J. T. Grice, judge of the court at said time, on August 8, 1942, in which he granted a conditional new trial based upon the writing off of the $10 per month for the alimony as support for the wife, Mrs. Nonene Ponder, and this sum was written off and the motion for new trial therefore overruled. 4. That, after the final verdict was rendered, it was agreed that the matter of custody and control of the said Purvis Ponder be held in abeyance and no action had until some later date, with the result that the matter has been hanging and no decision or permanent award ever made for the custody, possession, and control of the said minor child. That the said child is a boy, named Purvis Ponder, now four years old, having become this age on or about March 8, 1944. 5. That petitioner has remarried and now lives at Claxton, Georgia, and has a good home and fine wife and he desires to obtain the possession, custody, and control of his boy, which means so much to him. That the mother of Purvis Ponder is not at her home at Glenwood but is engaged in some form of work, as he understands, away from her home, and the child is therefore left in the custody of some one other than the mother. This child is now of an age when he needs the best of training and development, and petitioner is now well prepared and adequately qualified to properly take charge of his son and rear and nurture him in a way that will give him a chance to make a good citizen of our community. 6. That the custody, possession, and control of the minor child, Purvis Ponder, should be permanently awarded to this petitioner, and the mother of said child, Mrs. Nonene Ponder, should be allowed reasonable opportunities to see the child. Wherefore petitioner prays . . since said matter is in this court, as follows: (a) That a rule nisi should be issued directed to the said defendant in this action, Mrs. Nonene Ponder, requiring her to show cause before your honor at such time and place as you may designate, why the permanent custody, control, and possession of his minor son, Purvis Ponder, should not be awarded to petitioner. (b) That the defendant be served with a copy of this petition and order as soon as possible, under the usual form of service, or at her most notorious place of abode in Wheeler County, Georgia. (c) That petitioner have such other and further benefits as to the court may seem reasonable, just, and proper." On this petition the judge on July 1, 1944, issued a rule directing the defendant to show cause before him at Reidsville, in Tattnall County courthouse on July 15, 1944, why the prayers of the petition should not be granted, and the custody, control, and possession of said child be then and there determined, as provided for by law, the rule being directed to the sheriff and his deputies of Wheeler County, Georgia, who served the same. Mrs. Nonene Ponder filed a plea of res judicata, setting out her petition for a writ of habeas corpus, the agreement, and order thereon in the court of ordinary of Wheeler County, above referred to; and also filed a plea to the jurisdiction, alleging that she was, and had been for twenty-five years, a resident of Wheeler County, Georgia; that Wheeler County was not in the same judicial circuit with Tattnall County; and that the court of ordinary and the superior court of Wheeler County have jurisdiction of said case. She also filed an answer to the petition. On August 12, 1944, the court entered the following order: "It appearing to the court that the ordinary's judgment referred to in the within plea was rendered prior to the filing of the divorce proceeding between the plaintiff and the defendant, and that the plaintiff in said divorce proceeding, respondent here, incorporated a prayer for custody of said child, said plea is hereby overruled on the ground that jurisdiction in said case is vested in the court, and the ordinary's judgment is not binding on this court." After hearing evidence, the court entered the following order: "It appearing to the court that on October 2, 1940, Mrs. Nonene Ponder filed her action for divorce in Tattnall superior court against S.C. Ponder, and it further appearing to the court that a final verdict divorcing said parties was granted on April 20, 1942, and that on the same date a decree of the court was entered by Hon. J. T. Grice, former judge of this court; and it further appearing from the understanding had by Hon. J. T. Grice, then judge of this court, that jurisdiction of this case was retained for the purpose of determining the question of the custody of the child involved in this proceeding; and it not appearing that the defendant in the divorce action had waived any right to ask for the custody of said child: Therefore, it is the judgment of this court that the question of custody of the child involved, under the understanding of the former judge of this court, rests in the breast of the court for determination at this time; and it is the further judgment of the court that the plaintiff in the original divorce action, respondent in this proceeding, have the custody of the child involved, Purvis Ponder, six (6) months of each year, and that the defendant in said divorce case, and the applicant in this proceeding, have the custody of said child for the remaining six (6) months of each year, during the minority of said named child. . . Further ordered that jurisdiction of said matter is hereby reserved by the court for further consideration and determination, and that this order shall remain effective until further order of this court." Exception was taken to the order overruling the plea of res judicata and the plea to the jurisdiction, as being contrary to law, and also on the general grounds to the order awarding the custody of the child.