Hirsh v. Dobb
| Decision Date | 07 March 1968 |
| Docket Number | No. 24475,24475 |
| Parties | Marvin C. HIRSH v. Merle Berchenko DOBB. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The enumerations of error relating to rulings made in conducting the trial are not meritorious.
2. Those complaining of the exclusion of evidence are likewise without merit.
3. (a) There is no merit in the enumeration complaining of the trial court's finding as to why the mother failed to return to this state for a substantial period of time.
(b) The evidence authorized the denial of change of custody.
(c) In view of 3(b), above, it was error to modify the original decree.
Nall, Miller, Cadenhead & Dennis, Gerald A. Friedlander, Atlanta, for appellant.
Arnold Shulman, Atlanta, for appellee.
This appeal emanates from a petition seeking modification of a decree awarding custody of a minor child. The father, Marvin Charles Hirsh, filed the petition in the Superior Court of Fulton County against the mother, Merle Berchenko Dobb. He alleged that by the original decree of September 16, 1966, the mother was granted custody of the child. He further alleged that since that decree the mother left the child, moved to Maryland, remarried, removed away from it and failed to care for it; and that he took care of the child. His petition prayed that the decree be modified so as to give him full custody and the mother reasonable visitation privileges. The mother's answer denied the material allegations of the petition, and requested return of the child to her and modification of the father's visitation rights.
The trial court by its judgment found no change of condition warranting a change in custody but made certain modifications to be referred to later.
The appeal is from that judgment. Enumerated as errors are matters relating to the conduct of the trial, exclusion of evidence and modification of the decree.
(a) The first enumeration complains of the trial court's refusal to allow the father to call the mother as his first witness for purposes of cross examination. As to this, the transcript of testimony shows that the father's attorney merely stated 'I would like to call (the mother),' that the court then stated, 'No, you make out your case first,' that thereupon the father's attorney replied 'I'll call (the father) to the stand,' and that the father then testified. From what thus appears, the father did not seek cross examination of the opposite party pursuant to that right under Code Ann. § 38-1801, but sought to make her his own witness. Furthermore, he acquiesced in the court's ruling, and he later cross examined her. For these reasons this complaint is not meritorious.
(b) The second of these enumerations contends that the trial court erred in calling the mother to the witness stand on direct examination immediately following the testimony of the father, rather than allowing him to call his other witnesses and present his case. The father made no objection and did not state that he had not rested his case, but merely replied 'We have a number of witnesses,' without making any statement as to what their testimony would be or showing the materiality of such testimony. This enumeration is likewise without merit.
(c) The third enumeration in this category urges that it was error to terminate the testimony of the paternal grandmother and to refuse to allow her to testify because of her lack of knowledge of the mother's conduct since the original decree. The transcript shows that when this occurred the father's attorney stated that this witness knew nothing as to this feature, which was the decisive issue in the case. No error was thus committed.
(d) The final enumeration in this group is that the trial court terminated the hearing prematurely and prevented the father from presenting his case by refusing to allow further evidence and stating that it was going to enter an order immediately. The father made no objection, and made no statement that he had any further evidence to present. From what appears the presentation of evidence had then been completed. Thus it does not appear that the father was denied any right. This enumeration is not valid.
The first and second will be dealt with jointly. The first urges that the father's right of cross examination was abridged by the court's continually refusing to allow him to impeach the mother and refusing to allow him a thorough and sifting cross examination of her. The second enumeration insists that this right was abridged by ordering the mother to leave the witness stand prior to the father's completion of his cross examination, thereby terminating it. The transcript does not sustain these two contentions. The father, through his counsel, was afforded full opportunity to elicit all evidence which was germane to the issue before the court.
The third of these enumerations complains that the father was not permitted to cross examine the mother concerning a fight between her father and the man she claims she has since married, and also concerning the latter's arrest record. No showing was made by the father as to what he sought to elicit from this witness as to these two matters, and hence their relevancy was not made to appear. This complaint is therefore not justified.
The fourth of such enumerations is that the court refused to allow the father to interrogate the mother and others concerning her conduct between the original decree and the trial, but limited the questioning to the mother's conduct at the time of the trial only. The record does not support this assertion. The judge several times stated that he would not permit the parties to retry their divorce case and was interested only in present conditions. However, he also told the father that he could attempt to show the mother's...
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...the court may exercise a sound discretion in requiring counsel to make the relevancy of the questions apparent.' See Hirsh v. Dobb, 224 Ga. 130, 132, 160 S.E.2d 386. (b) Enumerations of error 8 and 9 complain of the refusal to allow a thorough cross examination of the Sheriff of Cook County......
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