Leftwich v. Cook
| Decision Date | 11 July 1949 |
| Docket Number | 32503. |
| Citation | 54 S.E.2d 455,79 Ga.App. 585 |
| Parties | LEFTWICH v. COOK. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where, as here, the custody of a minor child is involved under the theory of changed conditions, since the original award of the custody following a final decree for divorce, it is illegal to go behind the former judgment with reference to the conduct of the parties in the divorce proceeding prior to the first award of the custody of the child.
2. In an award of the custody of the child, the parental rights of the parents as to reasonable access to the child should be exercised with good judgment, keeping in mind always the best interests of the child.
This case arose out of a controversy between V. Clyde Leftwich plaintiff in error here, whom we shall call the father, and Annie Lovelance Cook (Annie Lovelance Leftwich), whom we shall call the mother. At the time of the institution of the present case, both the father and the mother, after obtaining a divorce, had remarried. Each of them contended in the instant case that a change of custody was to the best interest of the child, a boy who was at the time about four years old. The record is voluminous containing approximately 225 pages. When the instant controversy came on for hearing in the superior court as to an award of the child, the controversy was referred to the Juvenile Court of Fulton County for investigation and an award of the custody of the child. In view of the length of the record, and the approximately two years controversy over the award of the custody of the child, it seems from a study of the record and a clear understanding of the issues involved, that we can adopt here no better method of, in part, presenting the issues than to set out the judgment of the superior court of Fulton County in passing upon the law and the facts when the court reversed the judgment of the juvenile court on petition for certiorari and remanding the case to the juvenile court and specifying in the judgment of the superior court the law applicable as to future procedure. This judgment gives more or less a history of the controversy from the time of the divorce decree between the father and the mother and what has happened since. That judgment reads:
'It appears from the record in the above stated case that at the time the divorce was granted between the parties the final judgment and decrees provided that the contract entered into between the parties March 1, 1946, be made the judgment of the court. This contract provides for the custody of the minor child involved.
'On the 21st day of February, 1947, Judge Frank A. Hooper passed a consent order modifying the agreement between the parties in reference to the custody of the child, it being provided in said order 'that the question of custody of the child shall remain in the breast of the court and that the above and foregoing order is subject to modification upon change of conditions on or before April 1, 1948.'
'March 22, 1948, the plaintiff filed the petition stating that the agreement as to the provision of the child was not for the best interest, and that the court's order should be modified further, setting up that since the separation and divorce, he had lived a clean life; that the defendant had married one Robert R. Sudderth, and that the marriage was not successful; that the defendant is now working and leaving the child in the custody of a day nursery; that since he, the plaintiff, had married that his present wife was willing and anxious to have the responsibility of the child; that he now owns and operates a business from his residence and can personally supervise his child at all times, and he prays that the agreement and order of the court referred to in this petition be modified and permanent custody and control of said child be awarded to him. He further prays that the child be allowed to visit his mother and his mother visit him at any and all reasonable times. An answer was filed to this petition and the same was referred by this court to the Juvenile Court of Fulton County for investigation and determination of all issues in relation to the custody of the minor.
'At the trial of this case the judge of the juvenile court permitted much evidence to be introduced as to the condition on the parties prior to the divorce proceedings and prior to the order of Judge Hooper, dated February 21, 1947. It is clear to the court that this petition was brought for modification on the grounds of alleged changed conditions since the order as to the custody of the child has been passed and the court is of the opinion that the admission of evidence prior to these orders and judgment was error.
'The petition under consideration prays that the child be allowed to visit his mother, and that the mother be allowed to visit him at any and all reasonable times. The court is of the opinion that the judgment of the juvenile court restricting the mother to visit the child 'at such times as is convenient to the father at the father's home' does not follow the prayers of the petition and leaves the right of the mother to visit her child at the whim of the father.
'Therefore the certiorari in this case is sustained and the case is remanded to the juvenile court for a rehearing with instructions that the evidence at the hearing shall relate to the change of conditions on or after Febraury 21, 1947.
The record reveals that after the father and mother of the child obtained a divorce, the mother married one Suddereth, from whom she obtained a divorce and thereafter married her present husband Cook. The father had also married again and was living in the vicinity of Chattanooga Tennessee. The record also reveals that the mother is employed in Atlanta, Georgia, with the Veterans' Administration. She lives in the home of the grandmother of the child, who is a trained nurse. There is nothing in the record to reveal that since the award of the custody of the child at the time of the divorce between the father and the mother, which award was based upon an agreement between the father and the mother and which was approved by order of the judge of the superior court, that the father or the mother at this present time or since the award of the child in accordance with the agreement are not in financial condition to take care of the needs of the child and are not morally fit to supervise the rearing of the child. We might here state the material portions of the award of the custody of the child based upon the agreement between the father and the mother at the time their marriage was dissolved. The agreement provided that the actual custody of the child be divided equally between the father and the mother. The father was to have the child commencing on March 1, 1946, and the mother was to have the child for three consecutive months following the period in which the child is in custody of the father. It is further provided that the rotation of the actual custody of the child is to continue until such child becomes of school age and enters school or 'until further order of this court.' It is further provided that after one year the rotation of months may be changed by agreement of the parties. Upon application, the rotation of the child as to time was slightly changed by order of the superior court dated February 21, 1947, and it is provided in that order that 'the question of the custody of the child shall remain in the breast of the court and the above and foregoing order is subject to modification upon change of conditions on or before April 1, 1948.' Thereafter, the application was again filed to the superior court for change in the previous orders regarding the custody of the child and...
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