Carney v. Franklin, 17119
| Decision Date | 13 June 1950 |
| Docket Number | No. 17119,17119 |
| Citation | 59 S.E.2d 909,207 Ga. 39 |
| Parties | CARNEY v. FRANKLIN. |
| Court | Georgia Supreme Court |
E. C. Brannon, Gainesville, for plaintiff in error.
Irwin R. Kimzey, Clarkesville, Herbert B. Kimzey, Cornelia, Kimzey & Kimzey, Cornelia, for defendant in error.
On September 24, 1948, J. L. Franklin filed suit to modify a previous judgment of the superior court awarding custody of a minor child to its mother, that judgment having been rendered in a divorce proceeding and dated January 17, 1947. The allegations were: that the mother had never given the child proper care; that she had abandoned the child to its grandparents, and had left the child in the care of other children; that the child was not receiving proper food, and its health was endangered; and that the mother was not a proper and fit person to have custody of the child. The trial court, after a hearing on October 15, 1949, rendered a judgment modifying the decree of January 27, 1947, and awarded the custody of the child 'jointly in the plaintiff and defendant,' and provided that each parent should have custody of the child alternately for two weeks. The exception is to this judgment.
Syllabus Opinion by the Court
1. The trial court refused to admit in evidence the record of a conviction of the father for abandonment of the child prior to the original divorce decree. 'Since, on an inquiry as to the custody of a child after a previous divorce decree, only evidence showing a change of conditions would be material, evidence as to former finances, alleged misconduct, or character and temperament, all existing before the decree, ordinarily would be incompetent.' Kniepkamp v. Richards, 192 Ga. 509, 521(8), 16 S.E.2d 24, 32. It follows that there was no error in excluding this evidence.
2. It is contended that the judgment modifying the original decree awarding exclusive custody to the mother was erroneous for the reason that there was no evidence sufficient to authorize the modification. The evidence simply showed that the mother of the child allowed it to visit its grandmother on week-ends. This was not, of course, sufficient to support the allegations of abandonment. There was evidence to the effect that both the father and the mother had remarried, and that the father now maintained a home in which he could care for the child. Shields v. Bodenhamer, 180 Ga. 122, 178 S.E. 294, 295. See also...
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