Camp v. Camp

• Decision Date: 11 March 1957
• Docket Number: No. 19595,19595
• Citation: 213 Ga. 65,97 S.E.2d 125
• Parties: J. Kenneth CAMP v. Gladys Johnson CAMP.
• Court: Georgia Supreme Court

Page 125

97 S.E.2d 125

213 Ga. 65

J. Kenneth CAMP v. Gladys Johnson CAMP.

No. 19595.

Supreme Court of Georgia.

March 11, 1957.

Syllabus by the Court

1. It was reversible error for the judge to consider the report of the Welfare Department of Bibb County in deciding this habeas corpus case involving custody of minor children.

2. Ex parte affidavits are inadmissible in the trial of habeas corpus cases involving the custody of minor children; and, after notice and review, the decisions in Robertson v. Heath, 132 Ga. 310, 64 S.E. 73, Porter v. McCalley, 146 Ga. 594(3), 91 S.E. 775, 93 S.E. 405, Landrum v. Landrum 159 Ga. 324(1), 325, 125 S.E. 832, 38 A.L.R. 217 and Vincent v. Vincent, 181 Ga. 355(3), 182 S.E. 180, holding that such affidavits are admissible, are overruled.

3. An abortive attempt in the previous judgment, awarding custody of said minors, to retain jurisdiction was void and confers no authority upon the court. Burton v. Furcron, 207 Ga. 637, 67 S.E.2d 650; Hanson v. Stegall, 208 Ga. 403, 67 S.E.2d 109; Stout v. Pate, 209 Ga. 786, 75 S.E.2d 748; McAfee v. Martin, 211 Ga. 14, 83 S.E.2d 605; Goodloe v. Goodloe, 211 Ga. 894, 89 S.E.2d 654.

4. The children here being 6 and and 8 years old, respectively, the court did not abuse its discretion in refusing to allow them to testify. See Chunn v. Graham, 117 Ga. 551, 43 S.E. 987; Lamar v. Harris, 117 Ga. 993, 44 S.E. 866; Brown v. Harden, 150 Ga. 99, 102 S.E. 864; Walker v. Jones, 1 Ga.App. 70, 76, 57 S.E. 903.

This is a review of a judgment in a habeas corpus proceeding involving the change of custody of minor children between their parents. The record discloses that the parents are separated; and in a previous proceeding, by a consent order, the children were placed in the custody of the father during school months, but in the custody of the mother during June and July, with the right of visitation to the other parent while in the custody of either, and with the court attempting to further dispose of the case upon 'the further aplication of either party.' This judgment was unexcepted to. The present petition alleges changes in conditions affecting the interest and welfare of the children; that the children are 'at a pivotal age in their lives and need a mother's care and attention'; and that, the foregoing order being merely a temporary one, the mother now prays for the permanent custody of the children to be awarded to her. The court, reciting in its order that, after hearing evidence by witnesses and affidavits and consideration of a report obtained by the court from the Welfare Department of Bibb County, awarded the permanent custody of the children to the mother with temporary custody to the father during the months of June and July with visitation privileges to each parent while the children are in the custody of the other. The exception here is to that judgment and to earlier exceptions to rulings of the court made during the trial.

Clower & Anderson, Rome, for plaintiff in error.

Harris & Harris, Rome, for defendant in error.

DUCKWORTH, Chief Justice.

1. We thought that our opinions in Kilgore v. Tiller, 194 Ga. 527, 22 S.E.2d 150, Everett v. Sharpe, 207 Ga. 502, 63 S.E.2d 1, Sheppard v. Sheppard, 208 Ga. 422, 67 S.E.2d 131, and Moody v. Gilbert, 208 Ga. 784, 69 S.E.2d 874, made it crystal clear that the trial courts of the State could not consider reports of the Welfare Departments of the counties in the trial of a case involving the custody of minors. But the judgment now under review recites that it is in part based upon the report of the Welfare Department of Bibb County, and consequently we must reverse it and repeat our previous ruling that it is reversible error to consider such matter. It might be easier and cheaper for the litigant to introduce such records rather than produce as a witness in court the person or persons who made the investigation and have them testify and submit to cross-examination; but the other party in the case has rights that can not be protected fully if he is denied the privilege of cross-examination. We know that men's rights and liberties are jeopardized when courts abandon the tried and proven court procedure of admitting only relevant evidence and producing witnesses who are subject to cross-examination. And, while some jurisdictions appear to adopt the bureau-commission investigation farce of trials where such essentials to justice are denied, Georgia courts have not done so and will not thus assault liberty.

2. This case presents another vital question of evidence, and the decisions of this court are in part responsible for it. In Robertson v. Heath, 132 Ga. 310, 64 S.E. 73, which was a habeas corpus case in volving the custody of a child, the petitioning father to whom custody was awarded, introduced three affidavits over the objection that the respondent was denied the right of cross-examination. There was no attempt to show any special or out-of-the-ordinary circumstances preventing production in court as witnesses, subject to cross-examination, the affiants in each of such affidavits. This court affirmed the judgment and approved the ruling allowing the affidavits to be introduced as evidence. But some portions of the opinion appear to disapprove any such rule. The evils of affidavits as described are as follows: 'Facts may be omitted, without any wrongful intent, which give an entirely different appearance to the case * * *. Generally speaking, testimony is not admissible, on a final trial of the issues in a case, where there has been no opportunity for cross-examination, save in certain special instances, which the law writers treat as exceptions to the rule excluding hearsay evidence.' Then it is said, 'On the hearing under a writ of habeas corpus, involving the custody of a child, the better practice is to require the testimony to be delivered from the stand, or by depositions or interrogatories duly taken, with the privilege of cross-examination preserved, where practicable. Affidavits are often unsatisfactory at best. * * * We do not commend the practice of determining so important a question as the awarding of the custody of a child, with all the possible consequences to its future life and happiness, upon mere ex parte affidavits, as a general practice. Such a decision is final, under the circumstances then presented.' While we are reluctant to disapprove older decisions of this court, yet we will do so when we are convinced that they are wrong. The foregoing quotations show that this court was then of the opinion that such use of ex parte affidavits was bad, and this court would not 'commend the practice.' yet it affirmed the judgment allowing it. There was not then, nor is there now a compelling reason or rule of law requiring this court to sanction a practice which it can not commend, and a practice that it thinks is not the best.

The court undertook to support its judgment in that case by the decisions in Simmons v. Georgia Iron & Coal Co., 117 Ga. 305, 309, 43 S.E. 780, 61 L.R.A. 739, which says that a habeas corpus proceeding is not a lawsuit in the ordinary sense of the term; and Rogers v. Rogers, 103 Ga. 763, 30 S.E. 659, holding that, on the hearing of an application for temporary alimony, affidavits may be introduced as evidence Also numerous decisions of other jurisdictions and textbooks and encyclopedias are cited in the opinion to support the ruling and indicate that it was the common-law rule. Our statute, Code, § 38-1705, providing for the privilege of cross-examining witnesses alone is enough to change the common-law rule if that rule allowed affidavits to be used as evidence on any trial where the evidence is finally adjudicated. But, in view of the caution taken in our Constitution to preserve liberty by setting standards for trials openly and fairly, if necessary we would hold that Georgia Laws 1784, No. 287 (Watkins Digest), adopting the common law, excluded the portion...