Kniepkamp v. Richards

• Decision Date: 08 July 1941
• Docket Number: 13782.
• Citation: 16 S.E.2d 24,192 Ga. 509
• Parties: KNIEPKAMP v. RICHARDS.
• Court: Georgia Supreme Court

16 S.E.2d 24

192 Ga. 509

KNIEPKAMP v. RICHARDS.

No. 13782.

Supreme Court of Georgia

July 8, 1941

[Copyrighted Material Omitted]

Syllabus by the Court.

1. The supplemental certificates with respect to statements of counsel at the hearing, and certified by the trial judge more than twenty days after service of the bill of exceptions cannot be considered by this court, since they do not relate to any omitted 'material evidence,' and were not certified in the required time, so as to fall with in the exception of the Code, § 6-810(1), to the general rule that after signing the original certificate on a bill of exceptions, the judge is without power to make another certificate.

2. A permanent injunction should not be granted at interlocutory hearing.

(a) Nor should a final decree be entered at such a hearing held during the first term, in the absence of a consent of the parties entered on the docket as required by the act of 1935 (Ga.L.1935, pp. 481, 482, Ann.Code, § 81-1003).

(b) The present hearing by the judge, at the first term, out of the county where the suit for injunction involving custody of a child was pending, and heard only on affidavits, must be treated as interlocutory.

3. Under the Code, superior court judges are empowered to determine the custody of minor children both pending suits granting a divorce or suits granting alimony without a divorce and thereafter.

4. After acquiring equitable jurisdiction under the equitable averments and prayers of the petition, the court would retain jurisdiction to settle all related matters made by the pleadings, including the custody of the child. But the court was without authority at the interlocutory hearing to make any final award of custody.

5. Where, upon a fast writ of error, an award of the custody of a child has a direct bearing on the grant or refusal of an interlocutory injunction, this court will consider the ruling made as to custody.

6. In exercising a sound discretion as to the custody of a child, the court must look primarily to what is for the best interest, welfare, and happiness of the child.

(a) An award of custody made in a divorce decree is conclusive unless there has been a subsequent change of circumstances materially affecting the child's welfare.

(b) A like rule applies to an award of custody under a foreign divorce decree, especially where the foreign decree itself provides for a different award, either by the same court or a court of another jurisdiction, if such conditions have changed.

7. The answer and cross-petition of the defendant mother, being sufficiently verified by affidavit, was evidence of probative value, sustaining the judgment, which granted her an injunction and the custody of the child.

8. Although conditions before the divorce decree were irrelevant and should have been excluded, the subsequent marriage of the mother and the furnishing of a new happy home environment to the child, previously lacking, were pertinent. Likewise, the alleged strong anti-American sympathies of the naturalized, German-born father, as manifested in his alleged treatment of the child and mother before the divorce, might properly be deemed to have subsequently become more vitally important to the welfare of the child in view of subsequent Congressional legislation acutely affecting the relation of this country and Germany.

9. The overruling of special grounds of demurrer, relating to some irrelevant or otherwise inadmissible matters in the sworn answer, and the admission of such matters in evidence over objection, will not require a reversal of the interlocutory judgment.

10. Although, under the preceding rulings and the evidence, the grant of the injunction and award of custody of the child was not an abuse of discretion, the language of the order should be so modified as to operate only until the final hearing or further order of the court.

Hans P. Kniepkamp, a nonresident, filed in Habersham superior court a sworn petition against his former wife, Pia Olga Richards, now remarried and residing in this State. He prayed for an injunction against her removal of their son of three years out of the jurisdiction of the court, and against her preventing him from having access to the child on such terms and conditions as the court might think proper, having regard for the best interest of the child; and prayed for general relief. He alleged, that, after the separation of the parties in the State of New York, a divorce decree was granted in Florida on July 27, 1940, upon petition of the wife, under which decree the custody of the child was awarded to her until May 31, 1941, and thereafter alternately to the plaintiff and the defendant during each six months until the child reached majority; that, immediately after the divorce, the defendant married her present husband and removed to Clarkesville, Georgia; that during the Christmas holidays, 1940, the plaintiff went there from New York with presents for the child, was allowed to see him about three hours on Christmas day, and denied that right thereafter; that while under the decree the defendant was allowed the custody, it was to the best interest of the child to associate with the plaintiff, in order not to make the charges in custody, provided by the decree, so abrupt as to endanger the child's health and welfare; and that under the facts as alleged, 'there is manifest danger that the defendant will remove said child beyond the jurisdiction of [the] court, unless restrained from so doing.'

The defendant's answer and cross-petition alleged that during the marriage, the plaiantiff claimed that she was inferior, because of his 'pure Prussian birth and descent,' she having been born and lived in South Germany; that although the plaintiff was 'a naturalized American citizen,' he 'never ceased to state in her presence his contempt for American and everything American'; that 'he associated principally with Germans'; that, according to attached newspaper clippings, he was employed by a firm in New York City which, according to a former German consul, 'was the New York headquarters of the German Gestapo,' which was bombed and in which the plaintiff was injured; that, according to information, the plaintiff at one time in New York State had escaped from a mob which claimed he was a German spy; that during their marriage he was addicted to the heavy use of intoxicating liquors, had wrecked four automobiles, had allowed the child to remain in a hotel while he was drinking beer at the bar; that he had never shown any real affection for the child, except before others, and had proposed to her the placing of the child, after the Florida divorce, with another family or in an institution; that the plaintiff had little business sense, and constantly lost money and personal property by carelessness and negligence; that he constantly exhibited an ugly and abusive attitude toward her and the child; that he was unfair and niggardly in money matters, and had treated her unfairly, under facts as alleged, with regard to property belonging to her and their financial affirs. She further alleged that she was happily married to Ralph F. Richards of Clarkesville, who had given her and the child affection and care, which they never had while she was married to the plaintiff; that any visit from the plaintiff to the child would cause trouble, unhappiness, and sorrow, and virtually wreck her home; that in the divorce proceedings the plaintiff never asked and was not granted such permission to visit; that the child regards her present husband as a father, never having had a real affectionate father, is entirely devoted to him, and will allow no one else to care for him except herself and her husband's mother, whom he regard as a grandmother; and that the plaintiff 'is of peculiar temperament, character, and disposition, * * * is blustering and loud speaking'; and 'defendant believes and asserts, after her years of association with him, that he is mentally disordered.' Other averments of the defendant are indicated in a statement of the ground of special demurrer to her answer, which follows.

The defendant prayed, that plaintiff be denied the right to visit the child and interfere with her family life 'on the pretext of visiting the child'; that the court enjoin him from visiting her home or sending persons there to demand delivery of the child in order that he might visit the child; and that she have such other relief as might be meet and just. By amendment she alleged that it was to the best interest, welfare, and future of the child that she be awarded his sole and exclusive custody, 'because of change of circumstances set out in [the] answer'; and she prayed for such an order, with an injunction against the defendant's visiting or seeing the child 'except on reasonable notice and in such manner as the court may now fix by order.' The answer was verified as follows: that defendant 'has read the foregoing answer, and that the facts therein alleged on information and belief are verily believed to be true, and that the facts alleged upon her statements are true to the best of her knowledge and belief.'

The plaintiff demurred to the answer generally 'upon the ground that same sets out no defense to plaintiff's petition'; and to particular paragraphs 'upon the grounds that the allegations therein contained are impertinent, immaterial, prejudicial, irrelevant, surplusage uncertain, vague, and indefinite, [are] mere conclusions of the pleader with no facts to support the same * * * evasive, * * * and * * * set out no matter of defense to plaintiff's petition.' The averments specified as subject to these grounds are: allegations as to plaintiff's claim of superiority by Prussian birth and descent; his warning not to get...