Fuller v. Fuller
| Decision Date | 07 June 1944 |
| Docket Number | 14849. |
| Parties | FULLER v. FULLER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The office of a suggestion of diminution of the record in a case is to perfect the record in the Supreme Court so that it may correspond in all particulars with the original on file in the office of the clerk of the trial court. Clark v State, 110 Ga. 911, 36 S.E. 297; Stepp v Stepp, 195 Ga. 595, 25 S.E.2d 6. A motion by a defendant in error, denominated by him 'objections to the bill of exceptions,' and also as one suggesting 'a diminution of the record,' must be denied, where no portion of any omitted record is pointed out, and it is not averred that an approved brief of the evidence had been filed, but only averred that the evidence was not set out in the bill of exceptions, and where such motion contains only a prayer that this court delay consideration of the case until the trial judge can prepare 'and send to this court a supplemental certificate to the bill of exceptions, supplying the evidence withheld, and correcting the original bill of exceptions.'
2. A final decree in a divorce case, awarding the custody of the minor children to one or the other of the parties thereto, is conclusive as between the parties as to the right of such custody, unless a change of circumstances affecting the interest and welfare of such children is shown.
(a) This is true although the decree, after specifically awarding such custody, is immediately followed by the sentence 'subject to the further order of this court.'
3. A petition by a father, reciting that in such a divorce decree the custody of the minor children had been awarded to the mother, and praying for a modification of the decree, to the extent that he be granted the privilege of being with his children at least two afternoons each week, during reasonable hours to be designated by the court, and that, during vacation periods, he be granted the entire custody of such children for such periods and at such time as the court deem fit and proper, provided, of course, that he has a suitable place for their safe-keeping, custody, and safeguarding, was subject to dismissal upon oral motion on the ground that the facts set out did not warrant the modifying of the original decree awarding custody, and that no cause of action was set out in said petition.
(a) The trial judge having erred in failing to sustain the motion to strike, it was also erroneous, on the hearing, to enter an order modifying the original decree so as to permit the father and his mother to have the joint custody of the children at certain times weekly.
Mrs Ruby M. Fuller filed in Chatham superior court an action for divorce against Robert W. Fuller, which resulted in two verdicts granting her a divorce. On August 8, 1941, a decree was entered, giving effect to these verdicts, and containing the further provision that 'the custody of the children, Mary Elizabeth Fuller and Robert Wesley Fuller, Jr., be awarded to petitioner, Mrs. Ruby Morrison Fuller, subject to the further order of the court.' The bill of exceptions in the instant case recites that It is further recited in said bill of exceptions that 'the court on the 18th day of January, 1944, during the hearing of said case, then and there overruled and denied said oral motion thus made by counsel for the said Mrs. Ruby Morrison Fuller to dismiss and strike said petition. To this judgment and decision of the court overruling and denying the oral motion to dismiss and strike said petition to modify said divorce decree, the said Mrs. Ruby Morrison Fuller, plaintiff in error herein, then excepted, now excepts and assigns the same as error upon the ground that the same was contrary to law.
'Be it further remembered that on the said 18th day of January, 1944, at the conclusion of the hearing, the court then and there entered an order modifying the original divorce decree, and awarded the custody of the children at certain times to the petitioner and his mother, jointly.
'To the action of the court in thus modifying the original divorce decree and awarding the custody of the children at certain times to the petitioner, Robert W. Fuller, and his mother, plaintiff in error, Mrs. Ruby Morrison Fuller, then excepted, now excepts and assigns the same as error upon the ground that the same is contrary to law and as not justified by the pleadings in this case.'
Although the bill of exceptions contains the words, 'and upon the hearing of the issue thus formed,' and in another place therein, the words, 'at the conclusion of the hearing,' there is no evidence incorporated in the bill of exceptions or attached thereto as an exhibit, there is no recital that there was a brief of the evidence approved and filed as a part of the record. The only parts of the record specified as material, and certified to be such by the trial judge, are the pleadings, and the following judgment, to wit: 'The foregoing case coming on to be heard, and after evidence having been submitted, it is the judgment of the court that the mother of the movant and the movant have the joint custody of the two minor children between the hours of 12 noon on Saturday, and 7 p. m. Sunday, and the mother of said movant shall return them to the home of the defendant not later than the next day (Sunday) at 7 p. m.'
After the case reached this court, counsel for the defendant in error filed with the clerk a paper denominated by him in the caption as 'Objections to bill of exceptions and motion.' The body thereof commences as follows: 'And now comes the defendant in error and files this his objections to the bill of exceptions and asks a diminution of the record as set out in the rules of said court and in the Code of Georgia, Annotated, Chapters 6-810(4), 24-4508, and 6-1403, for the following reasons:'
The motion is divided into seven paragraphs. The first is, to the effect that the statement in the bill of exceptions certified to be true by the trial judge, to the effect that an oral motion was made to dismiss and the court overruled the same was an incorrect statement. The second is, that evidence was offered, and on that evidence the court decided that a slight modification should be made in the original decree so as to permit the father to be with his children over the week-ends; and that when the court so decided, no objections were filed thereto until the present bill of exceptions was tendered, counsel for the defendant in error not knowing the contents of the same, and that he acknowledged service thereon with the reservation that the bill of exceptions was incorrect. The third is, that both the court and counsel for the defendant in error know that a decree in a divorce case, awarding custody of the children, was conclusive unless the statutes was changed. The fourth is, that the divorce action was based on service by publication, and the defendant in error did not know of the decree until long after the same was rendered. The fifth sets out evidence which movant feels should be incorporated in the record. It sets forth changes affecting the condition of the father, but no new and material conditions and circumstances substantially affecting the interest and welfare of the children. The next and seventh paragraph is as follows: 'The court is therefore requested...
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