Brown v. Smith

• Decision Date: 14 April 1920
• Docket Number: 1695.
• Citation: Brown v. Smith, 150 Ga. 111, 102 S.E. 813 (Ga. 1920)
• Parties: BROWN v. SMITH.
• Court: Georgia Supreme Court

102 S.E. 813

150 Ga. 111

BROWN v. SMITH.

No. 1695.

Supreme Court of Georgia

April 14, 1920

Syllabus by the Court.

A wife sued her husband for a total divorce, and alleged that there was a girl child, the issue of the marriage, about 22 months old, and set forth in her petition that the husband, from whom she was then living in a bona fide state of separation had declared that the wife should not retain the custody of the child, and that she feared that the husband would do bodily harm to her and the child in his efforts to regain its custody, and, among other things, prayed that the husband "be enjoined from in any manner interfering with the petitioner in the custody and control of said child, or molesting her in any way relative to the custody of the child." Upon presentation of the petition the judge granted an order which, among other things, enjoined and restrained the husband as prayed. On a preliminary hearing the judge granted temporary alimony and attorney's fees and ordered that "the defendant is enjoined as prayed." Two verdicts having been rendered, finding a total divorce for both parties, and removing their disabilities, a decree was entered in accordance with such verdicts, and the custody of the child was awarded to the wife. The decree made no reference to an injunction against the husband. Nearly 9 years thereafter, when the child was more than 13 years old, her father took her in custody without the knowledge or consent of her mother. The mother sought to recover the child's custody from her father, by writ of habeas corpus issued by the ordinary of the county. Upon a hearing of the habeas corpus proceeding, the ordinary awarded the custody of the child to her mother; but, on notice by the father of his intention to take the case by certiorari to the superior court, the ordinary gave to the father the temporary custody of the child on conditions stated. The record does not disclose what was done in reference to the certiorari. Subsequently, the mother sought to have the father of the child attached for contempt for violating the judgment of the court enjoining him from interfering with the mother's custody of the child; the act of contempt alleged being that the father had surreptitiously taken charge of the child and brought her away from the home of the mother without her knowledge or consent. Upon a hearing in the contempt proceeding the judge adjudged the father of the child to be...