Brooks v. Thomas

• Decision Date: 14 March 1942
• Docket Number: 14031.
• Parties: BROOKS v. THOMAS et al.
• Court: Georgia Supreme Court

19 S.E.2d 497

193 Ga. 696

BROOKS v. THOMAS et al.

No. 14031.

Supreme Court of Georgia

March 14, 1942

Rehearing Denied March 30, 1942.

Syllabus by the Court.

1. A decree awarding custody of a child in a divorce case is conclusive as between the parties to such decree, unless a change of circumstances affecting the welfare of the child is shown. In the instant suit by a mother against a father, for the writ of habeas corpus, to obtain the custody of a child awarded to the father in a decree of divorce between him and the mother, the judge was authorized to find that the evidence produced upon the hearing failed to show such a change of circumstances affecting the welfare of the child as would authorize the opening and modification of that decree.

2. Considered in the light of the former decree involved and the other circumstances in the case, it was not error for the court, on the hearing of such a suit, to exclude evidence that the mother was able at that time to provide a home for the child.

3. While in a case of this character the judge may exclude the parties litigant from the court-room while the child involved is testifying, this is a matter resting in the sound discretion of the judge. The instant record fails to show an abuse of discretion in refusing the motion to exclude the parties while the child was testifying.

Mrs Nancy Ruth Thomas obtained a decree of divorce from her husband, Russell Johnson Thomas, in the State of Nevada in May, 1935. The husband thereafter filed a suit for divorce in Fulton superior court. On December 7, 1935, the parties entered into an agreement respecting the custody of the two minor children of the parties, which on March 9, 1936, was made the judgment of the court and incorporated into the decree in the latter case. Under this agreement full custody of the children was given to the husband until the wife should become able to take care of and maintain them, at which time she was to be entitled to their custody from June 1 to September 1 of each year, if she desired such custody. The agreement gave each parent the right to visit and see the children while in the custody of the other, and provided that each should be responsible for the support and maintenance of the children while in his or her custody. On October 30, 1937, by a supplemental agreement between the parties, approved by the judge of the superior court, it was provided that each party should be entitled to keep the younger child one afternoon each week and a stated portion of each week-end during the period that the other parent had custody of the child. On September 20, 1941, the mother, who had remarried, filed a petition for habeas corpus against her former husband and Mrs. W. E. Finch, his sister, seeking custody of the younger child and modification of the previous orders of the court respecting his custody. After hearing evidence the judge denied the prayers of the mother, and remanded the child to the custody of its father. The exception is to this judgment.

From the pleadings and the evidence introduced on the trial it appeared that William Bascom Thomas, whose custody is here involved, was about three years of age at the time his parents were divorced; that since the child's father, to whom the custody of the child was awarded, did not maintain a home, he arranged with his sister, Mrs. Finch, to take care of the child; that Mrs. Finch had no children of her own, and gave the child such attention as she might have given a child of her own; and that the father boarded elsewhere, but paid the child's expenses and visited him often. It appeared from the evidence that Mrs. Finch's home had only two bedrooms, and that the child and his aunt, a woman about fifty-five years of age, shared the same bedroom and slept in the same bed until shortly before the trial, when the child was given a room to himself. The mother testified that on one occasion the child came to visit her, having high fever from a cold, and that he should have been in bed at the time; but generally the evidence showed that he received all necessary and proper attention at the home of his aunt. The child, who was nine years old at the time of the trial, testified that he was well treated at the home of his aunt, but stated that he thought he would prefer living with his mother. The father alleged in his answer that his financial circumstances had not changed since the divorce; and there was no evidence controverting this allegation.

Fine & Hendrix, of Atlanta, for plaintiff in error.

Wm A. Fuller, of Atlanta, for defendants in error.

DUCKWORTH Justice.

1. A decree in a divorce...