Danziger v. Shoob

• Docket Number: 16211.
• Decision Date: 13 May 1948
• Citation: 48 S.E.2d 92,203 Ga. 623
• Parties: DANZIGER v. SHOOB.
• Court: Georgia Supreme Court

48 S.E.2d 92

203 Ga. 623

DANZIGER v. SHOOB.

No. 16211.

Supreme Court of Georgia

May 13, 1948

Syllabus by the Court.

When a decree of divorce becomes final and custody of minor children is awarded therein, such award of custody by the divorce court is a final judgment on the facts then existing. Thereafter, proceedings relating to the custody of the minor children, against the person awarded custody by the divorce court, must be brought in the county of such person's residence.

On January 10, 1948, Harry Shoob filed a petition in Chatham Superior Court against Mrs. Frankie (Phillip) Danziger seeking modification of an order decreeing the custody of their child to be in the defendant, which order was entered on December 7, 1942, in Chatham Superior Court in a divorce case between the parties, wherein Mrs. Danziger (formerly Mrs. Shoob) was plaintiff and Harry Shoob was defendant.

Mrs Danziger interposed a plea to the jurisdiction upon the ground that she and the minor child reside in Richmond County, Georgia, and that the courts of that county, and not the Superior Court of Chatham County, have jurisdiction of the case. She also filed a demurrer to the petition on the ground that it appears upon the face of the petition that she is a resident of Augusta, in Richmond County, and the minor child resides with her; and that the Superior Court of Chatham County has no jurisdiction of her. The judge of the Superior Court of Chatham County, on the hearing of the case, overruled the demurrer and sustained a motion to dismiss the plea to the jurisdiction. The exception here is to the overruling of the demurrer and sustaining of the motion to dismiss the plea.

Pierce Bros., of Augusta, for plaintiff in error.

Aaron Kravitch, Phyllis Kravitch and Julius Fine, all of Savannah, for defendant in error.

HEAD Justice.

The only question presented by the record in this case is whether the superior court which grants the custody of a minor child, on the conclusion of divorce proceedings, continues to have jurisdiction over the subject matter after the party to whom custody of the child was granted has changed her residence to another county of the State. This particular question has never been decided by the courts of this State.

It is the contention of the defendant in error that a superior court judge in a divorce action has continuing jurisdiction in matters concerning the custody of children, and that this jurisdiction would continue for the purpose of entertaining motions for modification, irrespective of the changed residence of the mother and child.

It is further contended that the order of the court decreeing custody, which contained the phrase, 'until the further order of this court,' showed that only a conditional or limited disposition of the child was made and that the court would retain jurisdiction for the purpose of making the order absolute, or modifying it in some degree before it is made absolute.

In some jurisdictions the award of custody of children in a divorce decree is considered to be one of provisional or interlocutory character, subject to modification or change as the welfare of the child may demand, and the absence of parents or children from the territorial jurisdiction of the court does not affect the court's power to modify the provisions of its decree respecting the custody of children. 17 Am.Jur. 520, § 686. The provision of our law which authorizes the judge in divorce proceedings to award the custody of minor children is found in the Code, § 30-127, which reads in part as follows: 'In all cases of divorce granted, the party not in default shall be entitled to the custody of the minor children of the marriage. The court, however, in the exercise of a sound discretion, may look into all the circumstances, and, after hearing both parties, make a different disposition of the children, withdrawing them from the custody of either or both parties, and placing them, if necessary, in possession of guardians appointed by the ordinary.'

It has been repeatedly held by this court that the award of custody in divorce proceedings authorized by this Code section is conclusive between the parties to the...