Burton v. Furcron

• Decision Date: 13 February 1951
• Docket Number: No. 17336,17336
• Citation: 207 Ga. 637,63 S.E.2d 650
• Parties: BURTON v. FURCRON.
• Court: Georgia Supreme Court

Page 650

63 S.E.2d 650

207 Ga. 637

BURTON v. FURCRON.

No. 17336.

Supreme Court of Georgia.

Feb. 13, 1951.

Rehearing Denied March 14, 1951.

Syllabus by the Court.

Where children are involved in the granting of a divorce decree, it is the duty of the trial judge to award their custody. Where by decree an award is made asserting it to be 'for the present,' with a further provision that 'this court retains jurisdiction for the purpose of determining permanent custody of the children,' such will not divest the award of its finality, nor retain exclusive jurisdiction over their custody where a change of condition affecting their welfare occurs.

This was a habeas corpus proceeding filed February 14, 1950, for the custody of two children, between the father and maternal grandmother, in which a previous judgment for divorce, alimony, and custody is brought into question.

The father brought the proceedings against the grandmother in the Court of Ordinary of Oglethorpe County. Both were residents of that county. The children were in the custody of the grandmother. On the hearing there was testimony that the grandmother was neglecting the children and permitted them to go around begging, shabbily dressed and ill kept; that she had tried to poison their minds and turn them against the father; that she would not permit them to receive Christmas presents sent them by him; that he had remarried, owned his farm, and could furnish them a good home. The grandmother denied that the children had been mistreated, and produced evidence that they had a good home and were well cared for. Both children, aged 9 and 10, testified they were contented and desired to remain with their grandmother. The verbal testimony was such as would have sustained the discretion of the ordinary in awarding the children to either. In support of her claim for the retention of the children, the grandmother introduced a certified copy of a judgment of Fulton Superior Court in the case of Robert Furcron v. Corinne Furcron, which, after granting a divorce, and alimony for the children, continued as follows: 'It is ordered further that the custody of said children, for the present, be and the same is hereby awarded to the defendant, Corinne Furcron, and it is further ordered that the children be left in the care of their grandmother. Susie Burton, until the further order of this court. This court retains jurisdiction of this case for the purpose of determining permanent custody of the children at such time as the court in its opinion and upon further investigation, may deem for the best interest of said children.'

The father testified that he was discharged from the army in January, 1947, and shortly thereafter visited the mother of the two children, who was then insane, and an inmate of a mental institution near Chicago, Illinois.

The ordinary awarded the custody of the children to the father. The grandmother filed a petition for certiorari to the superior court, which was sanctioned, and on the hearing of the writ the trial judge denied the certiorari, to which judgment exceptions are brought to this court.

Joseph B. McGinty, J. T. Sisk, Elberton, for plaintiff in error.

Chas. F. Johnson, Louisville, Fred A. Gillen, Lexington, J. Walter Le Craw, Atlanta, for defendant in error.

ATKINSON, Presiding Justice (after stating the foregoing facts).

The controlling question here is the construction and the legal effect of the judgment of the Superior Court of Fulton County granted in 1943. By this judgment has the Superior Court of Fulton County retained exclusive jurisdiction, up to this time, over the award of custody of the children involved? Ordinarily where custody is awarded in divorce proceedings, the award is conclusive between the parties, though, where a change of circumstances affecting the welfare of the children subsequently occurs, a habeas corpus court can then change the custody. Under the Fulton County judgment it is reasonably clear that that court sought to retain exclusive jurisdiction over the custody of these children until by further judgment it had divested itself of exclusive jurisdiction. As to this the judgment stated: 'It is ordered further that the custody of said children, for the present, be and the same is hereby awarded to the defendant, Corinne Furcron, and * * * that the children be left in the care of their grandmother, Susie Burton, until...