Brinson v. Jenkins, 17175

• Citation: 60 S.E.2d 440,207 Ga. 218
• Decision Date: 12 July 1950
• Docket Number: No. 17175,17175
• Parties: BRINSON v. JENKINS.
• Court: Supreme Court of Georgia

Page 440

60 S.E.2d 440

207 Ga. 218

BRINSON v. JENKINS.

No. 17175.

Supreme Court of Georgia.

July 12, 1950.

Rountree & Rountree, Swainsboro, for plaintiff in error.

Price & Spivey, Swainsboro, for defendant in error.

Syllabus Opinion by the Court

WYATT, Justice.

The record in the instant case discloses that on May 5, 1947, Geneva Brinson filed suit for divorce, alimony, and custody of a minor child against Ray Brinson in Emanuel Superior Court. At the interlocutory hearing, custody of the minor child, Murray Brinson, was awarded to Geneva Brinson. On October 16, 1947, a total divorce was granted to both parties, but in the final decree or judgment, no mention of the custody of the minor child was made, though the decree contained this language: 'Also that the plaintiff do recover of the defendant the sum of $25 per month of permanent alimony and support of Murray Brinson, their minor child, said sum to be paid to the plaintiff on the 1st day of each month beginning November 1, 1947, and monthly thereafter.' No other provision was made for the payment of alimony. On April 12, 1950, Ray Brinson filed his petition in the Superior Court of Emanuel County against Geneva Brinson (now Jenkins); the prayers of the petition being: '1. That a nisi issue directed to the defendant, Geneva H. Jenkins, requiring her to show cause, any if she has or can, why the final award of the custody of said child should not be made. 2. That upon a hearing of the facts herein set up, petitioner be awarded custody of said child, Murray Brinson. 3. That such further and other relief as to the court seems proper be granted petitioner.' To this petition Geneva Jenkins filed her special plea to the jurisdiction, contending that she was then a resident of Johnson County, Georgia, and that the Superior Court of Johnson County, and not the Superior Court of Emanuel County, had jurisdiction of the case. It was admitted in open court that Geneva Brinson (now Geneva Jenkins) was a resident of Johnson County. The trial court sustained the plea to the jurisdiction. The exception is to that judgment. Held:

1. The interlocutory judgment rendered during the pendency of the divorce proceeding, awarding custody of the minor child, was temporary in its nature. 'In suits of divorce, the judge presiding may, either in term or vacation, grant alimony, or decree a sum sufficient for the support of the family of the husband dependent upon him, and who have a legal claim upon his support, as well as for the support of his wife; and may also hear and determine who shall be entitled to the care and custody of the children pending the litigation, as if the same were before him on a writ of habeas corpus; and in case a sum shall be awarded for the support of said family, the husband shall not be liable to third persons for necessaries furnished them.' Code, § 30-206. The final award of custody can ordinarily be made only after a divorce has been granted. 'In all cases of divorce granted, the party not in default shall be entitled to the custody of the minor children of the marriage. The court, however, in the exercise of a sound discretion, may look into all the circumstances, and, after hearing both parties, make a different disposition of the children, withdrawing them from the custody of either or both parties, and placing them, if necessary, in possession of guardians appointed by the ordinary. The court may exercise a similar discretion pending the application for divorce.' Code, § 30-127. See also, Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24; Moody v. Moody, 193 Ga. 699, 19 S.E.2d 504. If there has been a final award of custody of a minor child in a divorce proceeding, thereafter proceedings concerning custody of the child must be brought in the county of the defendant's residence. 'When a decree of divorce becomes final and custody of minor children is awarded therein, such award of custody by the divorce court is a final judgment on the facts then existing. Thereafter, proceedings relating to the...