Fortson v. Fortson

• Decision Date: 05 October 1945
• Docket Number: 15212.
• Citation: 35 S.E.2d 896,200 Ga. 116
• Parties: FORTSON v. FORTSON.
• Court: Georgia Supreme Court

35 S.E.2d 896

200 Ga. 116

FORTSON v. FORTSON.

No. 15212.

Supreme Court of Georgia

October 5, 1945

Rehearing Denied Nov. 19, 1945.

Syllabus by the Court.

The custody of the minor children by the defendant in error is not illegal or void for any reason assigned by the plaintiff in error in her petition for a writ of habeas corpus.

This court, in Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 affirmed the judgment of the superior court which continued in effect a former decree (on a divorce granted between the parties), awarding the custody of the minor children (whose custody is the subject of the present litigation) to the mother, Mrs. Virginia F. Fortson, and restraining the father Charles W. Fortson, from taking permanent custody of the children. In Fortson v. Fortson, 197 Ga. 699, 30 S.E.2d 165, this court affirmed the judgment of the superior court transferring to the juvenile court, for investigation trial and determination, all questions of custody of the minor children. Subsequently a hearing was had by the judge of the juvenile court, and the custody of the minor children was awarded to Mrs. Jean S. Fortson (present wife of Charles W. Fortson). Thereafter the plaintiff in error here, Mrs Virginia F. Fortson, procured a modification of this order, which allowed her to have the custody of the children on the first and last weekends in each month.

In her petition for a writ of habeas corpus, Mrs. Virginia F. Fortson asserts that the custody of the children by the defendant, Mrs. Jean S. Fortson, is illegal and void because the act of 1915, pages 35-37 (Code, §§ 24-2402-24-2440), under which the juvenile court awarded custody to the defendant 'was not intended to apply to children under 16 years of age, [of] whose custody, as children of a dissolved marriage, a superior court of Georgia has, on divorce granted, assumed actual jurisdiction, and with respect to which divorce it is under the constitution of the State of Georgia (Art. VI, sec. IV, par. I, of Code § 2-3201) vested with exclusive jurisdiction, and with respect to the custody of the children of which said dissolved marriage it is vested under section 30-127 of the Code * * * of Georgia, in the exercise of a sound discretion, with exclusive jurisdiction;' and because the act of 1915, supra, modifies and repeals section 30-127 of the Code and contravenes and violates art. III, sec. VII, par. XVII of the State Constitution.

On the trial the court found for the defendant, and the petitioner brings the cause to this court for review.

Winfield P. Jones, of Atlanta, for plaintiff in error.

J. C. Murphy, of Atlanta, for defendant in error.

HEAD, Justice (after stating the foregoing facts).

Art. 6, sec. 4, par. 1 of the Constitution (Code, § 2-3201) provides: 'The Superior Courts shall have exclusive jurisdiction in cases of divorce: in criminal cases where the offender is subjected to loss of life, or confinement in the penitentiary, in cases respecting titles to land, and equity cases.' It is clear that judges of the superior courts in this State have exclusive jurisdiction in all cases of divorce under the above paragraph of the Constitution. It is equally clear that the paragraph above cited makes no reference to the custody of minor children in such divorce cases. Section 30-127 of the Code confers upon the judges of the superior courts the right to fix the custody of the minor children 'in all cases of divorce granted.' Section 30-206 provides that the judge may hear and determine who shall be entitled to the care and custody of the children pending the litigation. Prior to the act of 1913 (Ga.L.1913, page 110), now § 74-107 of the Code, there was a prima facie right in the father for the possession of minor children. In the act of 1913 (§ 74-107) it is provided that, in all cases where the custody of minor children is involved between parents, there shall be no prima facie right of custody in the father, and that the court may exercise its sound discretion and determine solely what is the best interest of the child or children and what will best promote their welfare and happiness. The Supreme Court in a number of cases has cited the above sections of the Code as the basis for the jurisdiction of a judge of the superior court to decree the custody of minor children in divorce cases. See Duke v. Duke, 181 Ga. 21, 23, 181 S.E. 161; Shipps v. Shipps, 186 Ga. 494, 495, 198 S.E. 230; Loggins v. Loggins, 191 Ga. 779, 780, 14 S.E.2d 91; Kniepkamp v. Richards, 192 Ga. 509, 517, 16 S.E.2d 24; Moody v. Moody, 193 Ga. 699, 700, 19 S.E.2d 504; Fortson v. Fortson, 195 Ga. 754, 25 S.E.2d 518; Ponder v. Ponder, 198 Ga. 781(2), 32 S.E.2d 801.

The jurisdiction of a judge of the superior court in such an instance, however, is not exclusive as to a future determination on material conditions and circumstances substantially affecting the interest and welfare of the minor children arising after the date of the award in such decree. In Williams v. Crosby, 118 Ga. 296, 298, 45 S.E. 282, 283, it was held: 'The decree is a final adjudication as to the status of the parties to the divorce proceedings, but the jurisdiction of a habeas corpus court over the custody of the child is continuing. In the nature of things, this must be so. The capacity, ability, or fitness of the party to whom the child was awarded in the divorce proceedings may thereafter become entirely different. The care and protection which the law affords the child are not limited to the date of the decree.' In the case of Haire v. McCardle, 107 Ga. 775, 33 S.E. 683, the plaintiff, in a divorce granted her, was awarded custody of the children. The decree allowed the father to visit the children, but the mother preferred to send them to visit the father. On one such visit the father refused to return them. The mother sued out a writ of habeas corpus in the court of ordinary to obtain possession of the children. On the trial before the ordinary, the father sought to amend his response by alleging that they were being reared by their mother under immoral, obscene, and indecent influences likely to degrade their moral characters and devote them to vicious lives. The ordinary refused to allow the amendment. On certiorari this judgment was reversed by the superior court and the judgment of the superior court was affirmed by this court. On the issue presented it was held: 'On the trial of a habeas corpus suit by the wife against her husband for the custody of minor children under the age of 12, it was error for the court to reject an amendment offered by the defendant to his answer charging, in effect, that the minor children sued for were being reared by the mother under immoral, obscene, and indecent influences, likely to degrade their moral characters and devote them to vicious lives, notwithstanding the fact that the wife had previously recovered in a suit for divorce a judgment or decree of the court awarding her the possession of these...