Dean v. Dean
| Decision Date | 10 October 1972 |
| Docket Number | No. 27408,27408 |
| Citation | 229 Ga. 612,193 S.E.2d 838 |
| Parties | Voncile DEAN v. James C. DEAN. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The trial court properly denied the motion to dismiss the petition seeking habeas corpus relief as to a minor child.
2. It also was correct in denying the motions to strike a particular paragraph of the petition.
Houston White, Red Oak, for appellant.
Travis & Furlong, Thomas A. Travis, Jr., Wall, Parker & Campbell, Alford Wall, Ross & Finch, Claude R. Ross, Atlanta, for appellee.
This appeal is from the denial of a defendant's motion to dismiss a petition seeking habeas corpus relief involving custody of a minor child and also the denial of her motions to strike a specified portion of the petition. Two enumerations of error are urged.
The petition, filed in the Superior Court of Fulton County by the father James C. Dean against the mother Voncile Dean, alleged in substance that the child is being illegally detained by his mother at a specified location in Fulton County in violation by the mother of a divorce decree of the superior court of that county.
Paragraph 5 of the petition alleged essentially that the detention is illegal in that the mother has violated the decree by intentionally refusing visitation rights to the father as provided for and ordered therein; and that this violation is a change in condition which has materially and adversely affected the welfare of the child subsequent to the award of custody to the mother.
Paragraph 6 of the answer averred substantially that the denial of any visitation rights by the mother is in direct violation of the decree and has denied the child his proper and necessary parental guidance to which he is entitled from his father.
The prayers were that the court issue the writ of habeas corpus; that it inquire into the denial of parental visitation rights; that the father be awarded permanent custody of the child or in the alternative that the court set down certain and definite times that the father may have custody.
The mother filed an answer which denied the foregoing allegations of the petition.
A certificate for immediate review was granted so as to permit the appeal.
1. We deal first with the denial of the defendant mother's motion to dismiss the petition, upon the ground that it fails to state a claim upon which relief can be granted.
The enumeration as to this recites in substance as follows: that the allegations of the petition disclose with certainty that the plaintiff would not be entitled to any relief prayed for under any state of facts which could be proved in support of the claim in (a) that the plaintiff failed to allege a change of condition with respect to the child; in (b) that with respect to change in condition the plaintiff failed to allege the facts at the time of the divorce decree, which are necessary to be alleged to show a change of condition from that existing at that time as compared with the date of the filing of this petition; and in (c) that the plaintiff, alleging solely the intentional refusal of visitation rights, is attempting merely to plead a contempt of court, but has omitted a prayer therefor, hence the petition should be dismissed because no relief of contempt could have been granted.
This enumeration, in our appraisal, is not valid for any of the reasons recited above.
The petition is not subject to dismissal insofar as failing to allege a change in condition is concerned.
It should be kept in mind that here we are concerned with the sufficiency of the allegation of the habeas corpus petition, not the sufficiency of the evidence upon the trial. In this situation it is well settled that the motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim; and if within the framework of the complaint evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. Bourn v. Herring, 225 Ga. 67(3), 166 S.E.2d 89; Mitchell v. Dickey, 226 Ga. 218, 220, 173 S.E.2d 695.
Considered in the light of notice pleading, the instant petition sufficiently apprises the defendant that the plaintiff is asserting against her a...
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