Elders v. Elders, 16869
| Decision Date | 09 January 1950 |
| Docket Number | No. 16869,16869 |
| Parties | ELDERS v. ELDERS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where, on the hearing of the wife's petition seeking custody of her two minor children, upon an alleged change in conditions since the judgment awarding custody to the husband, the only evidence of a change was the husband's admission that there was general talk in the community about the mother and, knowing that others would tell the children, he told them that she was immoral and did not love them, it was an abuse of discretion to award custody to the wife upon this ground alone.
On the hearing of the mother's application, based on an alleged change in conditions since the judgment awarding custody of their two minor children to the husband, the evidence was in substance as follows:
The plaintiff testified that she saw the children when they had head lice and sores on them; that they had to cook, wash, and keep house; that they were not properly supervised and cared for; that it was necessary for her to have some dental work done for them; and that the father had been poisoning their minds against her by telling them that she did not love them and that she was immoral.
She further testified: that she lives in Savannah with her mother and her sister, Mrs. Driggers; that she and her sister work, and she works an eight-hour shift sometimes days and sometimes nights; that she curses and drinks some, but does not get drunk; that she did attend a Company party at the Gold Star Ranch Casino last fall, and drank some, as did most of the other guests, but she did not get drunk or have a fight with some other woman there.
The father testified: that he was keeping the children in the same home under substantially the same conditions as existed when custody was awarded to him; that his sister helped supervise them; that the children work some, but not too much; that he drives a school bus and takes them to and from school; that they did get head lice at school, but after treatment they got rid of them; that he did tell them their mother did not love them and was immoral because there was lots of talk of it in the neighborhood, and he wanted to tell them before some one else did; and that they seemed depressed thereafter.
The father and sister of the defendant corroborated his testimony. A neighbor, who had spent several nights with the family, testified that the food was good, the house was clean, and the children were neat. The County School Superintendent, the Superintendent of the Junior High School which the children attended, and one of the teachers testified that the children attended regularly, were neat, well-trained, and made good grades. The 1948-49 school record of one child showed an average grade of 95.8 and an absence of only five days during the nine months' term.
A former policeman of the City of Claxton testified that he knew the sister of the petitioner, Mrs. Driggers, with whom the mother now lives, and that her reputation as to sobriety and chastity is bad. A taxi driver in Savannah testified that the mother and her sister Mr. Driggers, rode home from the Gold Star Ranch Casino some time in October or November, 1948; that they were involved in a fight with two other women; that they were both drunk and were badly beaten up.
The court awarded custody of the children to the wife because the husband had told the children that their mother did not love them and was immoral. The exception is to that judgment.
C. L. Cowart, Glennville, for plaintiff in error.
R. L. Dawson, Ludowici, for defendant in error.
DUCKWORTH, Chief Justice (after stating the foregoing facts).
When the parents of these two minor girls were divorced in 1947, the court awarded custody to the father. The law of res judicata applies in such cases; and when that award was made, the court may thereafter exercise a discretion as to the custody of the children only in so far as there may be new and material conditions and circumstances substantially affecting the interest and welfare of the children. Willingham v. Willingham, 192 Ga. 405, 15 S.E.2d 514; Brooks v. Thomas, 193 Ga. 696, 19 S.E.2d 497; ...
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