Breeden v. Breeden
| Decision Date | 16 October 1947 |
| Docket Number | 15950. |
| Citation | 44 S.E.2d 667,202 Ga. 740 |
| Parties | BREEDEN et al. v. BREEDEN. |
| Court | Georgia Supreme Court |
Statement of facts by DUCKWORTH, Presiding Justice Virginia Greeson Breeden instituted in the Superior Court of Whitfield County, Georgia, on February 22, 1947, an action against her husband, Arnold James Breeden, alleging that she and the defendant were living in a bona fide state of separation, and praying for temporary and permanent alimony for the support of their minor child, a baby girl six months of age, then in the custody of the father and also praying that custody of the child be awarded to her. The defendant filed an answer, denying certain allegations of the petition, and asking that such custody be awarded to him.
At a hearing the presiding judge, Hon. J. M. C. Townsend, awarded the temporary custody of the child to the mother on March 1 1947, continuing the hearing, and on March 29, 1947, awarded the custody of the child to the mother until the further order of the court, with the right of the father to visit the child as provided in the order. It was also ordered that when summer weather arrived, the defendant might apply for an order to have the child in the home of his parents a part of the time; and the defendant was directed to pay to the clerk of the court $30 per month, beginning April 1, 1947, for the support of the child, and to pay the wife's attorney $75 as attorney's fees. The order also provided that 'jurisdiction of the custody and control of the child herein is hereby retained in the court, subject to change with or without change of conditions and upon the application of either party or by the court upon his own motion.'
On April 5, 1947, the said judge modified the preceding order in certain respects relating to the hours in which the father might visit the child.
Hon Stafford Brooke succeeded Hon. J. C. Townsend as judge of the said court, and on June 2, 1947, the father filed therein a petition addressed to Judge Brooke, referring to the previous order of Judge Townsend retaining jurisdiction as to the custody of the child, in which petition the father sought custody of the child and revocation of the award of temporary alimony. After a hearing the court, on June 12, 1947, entered an order awarding the custody of the child to the father until the final determination of the case on July 4, 1947, granting to the mother the right to visit the child within reasonable hours.
On June 23, 1947, counsel for Mrs. Breeden entered upon the original petition the following: 'By direction of the plaintiff the within and foregoing petition is hereby dismissed, and the clerk of the court is hereby directed to strike the same from the docket of said court.' On the same day, the wife presented her petition for habeas corpus to Hon. Ernest McDonald, as Ordinary of Whitfield County, Georgia, who thereupon entered an order requiring the husband to produce the child before him on June 25, 1947.
Before the date set for a hearing, the husband filed in the superior court of the said county a petition against the wife, setting forth the proceedings as above detailed, and alleging that the attempt to dismiss the action instituted by his wife in the said court was ineffective, for the reason that the said superior court had already assumed jurisdiction and he had filed a cross-action asking that the custody of the child be awarded to him; that, irrespective of the said entry by the wife's counsel, the case is still pending and the court has jurisdiction, and for that reason the ordinary of the said county is without jurisdiction to act with respect to the custody of the child; and that the purpose of the wife in bringing the habeas corpus proceeding is to avoid the order of the superior court and to harass the petitioner with lawsuits concerning the custody of the child, and unless she be enjoined, a multiplicity of suits will result; and that the petitioner has no adequate remedy at law. The prayers were that the wife be enjoined from proceeding with said habeas corpus action, and the said Ernest McDonald, ordinary of the said county, be enjoined from acting in the said case and in any way interfering with the petitioner's custody of said child, and for process.
The wife demurred to the petition on the following special grounds (other grounds having been met by attaching exhibits showing proceedings between the parties prior to the petition for injunction): (a) To the allegations of the petition that the attempted dismissal of the wife's original petition was ineffective and the superior court has jurisdiction and the case is still pending therein, and the said ordinary is without jurisdiction to act conerning the custody of the child, for reason set forth in the husband's petition, the wife specially demurred on the ground that as a matter of law the judge of the superior court of the said county had no authority to award the custody of the child otherwise than in connection with a pending divorce action or a habeas corpus proceeding, and the allegations are as a matter of law incorrect because the wife has the right at any time upon her own motion to dismiss her action, and these allegations, in connection with others, show upon their face that the petition has been dismissed. (b) To the allegations of the petition that the purpose of the wife, in filing the habeas corpus petition with the said ordinary, was to avoid the order of the superior court and to harass the husband with lawsuits concerning the custody of the child, and that, unless enjoined, a multiplicity of suits would result and the petitioner had no remedy at law, the wife specially demurred on the ground that the allegations show on their face that the wife is proceeding in accordance with the law to have a proper judgment rendered by a court of competent jurisdiction awarding the custody of the child, and that such action on her part is not and can not be the basis for interference by the superior court by the remedy of injunction. The wife also demurred generally on the grounds: 1. There is no equity in the petition, and no ground for equitable relief through the remedy of injunction or otherwise is set out. 2. In so far as the petition is brought against the ordinary, it is without merit, in that the ordinary in the discharge of his judicial duties is not subject to the writ of injunction, and there is a misjoinder of parties defendant. 3. The petition shows upon its face that, if any remedy is available by way of defense in the habeas corpus proceeding before the ordinary, the husband has a complete and adequate remedy at law if his contentions are justified as a matter of law. 4. No cause of action is set forth in the petition against either the wife or the...
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