Atkinson v. Atkinson, s. 38084

• Decision Date: 07 April 1982
• Docket Number: Nos. 38084,38195,s. 38084
• Citation: 249 Ga. 247,290 S.E.2d 423
• Parties: Thomas H. ATKINSON v. Judith Ellen ATKINSON et al. Thomas H. ATKINSON v. James Wakefield SPALDING et al.
• Court: Georgia Supreme Court

Page 423

290 S.E.2d 423

249 Ga. 247

Thomas H. ATKINSON v. Judith Ellen ATKINSON et al.

Thomas H. ATKINSON v. James Wakefield SPALDING et al.

Nos. 38084, 38195.

Supreme Court of Georgia.

April 7, 1982.

A. Paul Cadenhead, R. Dennis Withers, Hurt, Richardson, Garner, Todd & Cadenhead, Atlanta, for Thomas H. Atkinson.

Robert N. Meals, Meals & McLaughlin, James B. Hiers, Jr., Swift, Currie, McGhee & Hiers, Edgar A. Neely, III, Neely, Player, Eichelberger, Hamilton, Hines & Welch, Atlanta, for Judith Ellen Atkinson and James Wakefield Spalding.

CLARKE, Justice.

These appeals arise from the efforts of Thomas Atkinson to recover for the wrongful death and expenses of the last illness of Tracy Atkinson, the daughter of Thomas and Judith Atkinson. Tracy died October 13, 1979, as the result of an automobile accident. Tracy's parents (hereinafter Thomas and Judy) were divorced at the time of Tracy's accident. There was no permanent award of custody at the time of her death. While she was in a coma and near death at Northside Hospital, temporary custody of Tracy was given to her mother. The temporary consent order giving temporary custody to Judy also obligated Thomas for all of Tracy's ordinary and reasonable medical expenses.

Judy brought suit against defendants, seeking damages for the wrongful death of Tracy, including recovery of funeral and medical expenses. Thomas moved to intervene on the basis of Ga.Code Ann. § 81A-124(a). The motion to intervene was denied. Following the denial of Thomas's motion to intervene, the remaining parties settled the lawsuit, and a consent judgment was entered. Thomas appeals from the denial of his motion to intervene in Atkinson v. Atkinson, Case No. 38084.

Thomas filed a separate action against the defendants, seeking damages for the wrongful death of his daughter and for medical and funeral expenses. Summary judgment was granted against Thomas in this action, and this is the basis of the appeal in Atkinson v. Wakefield, Case No. 38195.

Thomas's motion to intervene was denied because the trial court found that as a result of the temporary order Judy had custody of Tracy. Under the wrongful death statute in effect in Georgia at the time of Tracy's death, Ga.L.1979, p. 466, Sec. 43, the cause of action for recovery for the homicide of the child belonged to the parent with custody of the child if the parents were divorced. Since all other categories of surviving parents, including parents of illegitimate children, were entitled to a joint cause of action, Thomas contends that the statute as it existed in 1979 was unconstitutional. The statute was amended in 1980 to provide a joint cause of action for all living parents, including divorced parents, and custody is no longer a factor. Ga.L.1980, p. 1154. Ga.Code Ann. § 74-108(b)(2)(C).

We do not need to reach the question of the constitutionality of Code Ann. § 74-108(b)(2)(C) as it existed in 1979 inasmuch as we find that Thomas, as well as Judy, was a custodial parent within the meaning of the statute. "Because of the difference in its nature and purpose from an award of permanent custody, the temporary order is not governed by the same rules of law as permanent custody." Harper v. Harper, 233 Ga. 253, 254, 210 S.E.2d 773 (1974), quoting Foster v. Foster, 230 Ga. 658, 660, 198 S.E.2d 881 (1973). The discretion of the court is extremely broad in a determination of custody matters so long as the case remains in the bosom of the court and permanent custody has not been granted. A temporary custody hearing does not decide any final issues between the parties, and we have specifically held that the court may award custody to one party at one hearing and to another party at another. Mathews v. Mathews, 230 Ga. 779, 199 S.E.2d 179 (1973); Foster v. Foster, 230 Ga. 658, 198 S.E.2d 881 (1973). Further evidence that an award of temporary custody does not finally determine any rights of the parties is the fact that a temporary custody order is not appealable. McKenzie v. McKenzie, 225 Ga. 314, 168 S.E.2d 152 (1969); Graham v. Graham, 219 Ga. 193, 132 S.E.2d 66 (1963).

In view of the fact that we have consistently held that temporary custody does not finally determine any rights between the parties, we now hold that temporary custody of a child does not preclude an action for wrongful death by a non-custodial parent under Code Ann. § 74-108 as it existed in 1979.

Having held that Thomas was not precluded by virtue of the temporary order from pursuing jointly with Judy the action for wrongful death, we must necessarily find that the court erred in denying his motion to intervene. It is apparent that Thomas met the requirements which we set down in State Farm Mutual Automobile Insurance Co. v. Five Transportation Co., 246 Ga. 447, 271 S.E.2d 844 (1980), for intervention under Code Ann. § 81A-124(a)(2): interest, impairment resulting from unfavorable disposition, and inadequate representation. Id. at 453, 271 S.E.2d 844.

Judy's original complaint contained a prayer for medical and funeral...