Madison v. Montgomery

• Decision Date: 11 October 1949
• Docket Number: 16785.
• Citation: 56 S.E.2d 292,206 Ga. 199
• Parties: MADISON v. MONTGOMERY.
• Court: Georgia Supreme Court

56 S.E.2d 292

206 Ga. 199

MADISON v. MONTGOMERY.

No. 16785.

Supreme Court of Georgia

October 11, 1949

Rehearing Denied Nov. 18, 1949.

Syllabus by the Court.

1. A judgment fixing the custody of a minor child is conclusive between the parties, and the principle of res judicata is applicable, unless a material change in circumstances substantially affecting the welfare of the child is made to appear. In determining whether or not there has been such a change, the trial judge is vested with a discretion which will not be controlled by this court unless it is abused. Under the facts of the present case no abuse of discretion is shown.

2. When the trial judge is by law made the trier of an issue of fact this court will not interfere with his finding when there is any evidence to support it. City of McRae v. Folsom, 191 Ga. 272, 276, 11 S.E.2d 900.

3. The right to present argument is a valuable and substantial one which all litigants have in the trial of cases, and one which should never be denied; but it is a right which may be waived expressly or by conduct. In the present case it was waived by conduct.

Mrs. Lois Madison filed contempt proceedings in the Superior Court of Hall County against her former husband, Marvin Louis Montgomery, Sr. It appears from the record that the marriage between these parties was dissolved by divorce on January 15, 1945, and by the terms of the final decree Montgomery was required to pay his divorced wife $40 per month as permanent alimony, beginning February 1, 1945, and on the first day of each succeeding month until the majority of their minor child, who was then about two years old, half of which amount was for the support and maintenance of the divorced wife, and the other half for the child. The decree did not specifically provide for the future custody and control of the child. Montgomery was in the Army when the divorce suit was filed by his wife, when the decree was granted, and when his divorced wife married Douglas R. Madison on March 15, 1945. After Montgomery's discharge from military service, the child in question remained in the custody and control of his mother, and Montgomery continued to make the monthly payments of $40, notwithstanding her remarriage. No attack is made upon the decree granting the divorce and inferentially the aprties have treated it as one awarding custody and control of the child in question to his mother.

The present proceedings was filed February 9, 1949, and the eptition alleges that the defendant wilfully refused to comply with the terms of the decree by paying the installments of $40, each due on January 1, and February 1 1949. It was also further alleged that the defendant, in violation of the decree, went to a school in Gainesville, Georgia, where their child was a pupil, and without the knowledge and consent of the plaintiff, 'surreptitiously obtained the custody of said child and spirited it away to Fulton County, Georgia, where he is now illegally detaining the same and withholding the same from the lawful custody of petitioner.' The prayers were for a rule nisi and service; that the defendant be adjudged in contempt for violating the terms of the decree of January 15, 1945; that the Sheriff of Hall County be directed to take immediate possession of the child in question and hold him in custody until further ordered; and for general relief. In a response to the petition, the defendant denied that he had violated any of the terms of the decree, either by failing to pay any of the installments due for alimony, or by unlawfully interfering with the plaintiff's custody of their child. By cross-action the defendant alleged, in substance: that he had filed a proceeding in Hall County Superior Court during October, 1948, for the purpose of obtaining custody of his child, alleging therein that the mother of their child, the plaintiff in this proceeding, was living in adultery with Don Mullins, and for that reason she was no longer a fit and proper person to have custody and control of their child; that the allegations of that petition were denied and a plea to the jurisdiction was filed, alleging that the defendant therein was a resident of a different county in this State; and that he voluntarily dismissed that proceeding after the defendant signed a written promise to discontinue her association with the party named and to properly care for their child and keep him under a proper environment. It is further alleged that, about two weeks after the agreement was signed, his former wife renewed her illicit and adulterous relations with Mullins; and that such relation continued between them until this defendant went to Hall County and by permission of his former wife took possession of his child, which possession he retained until the child was taken from him by the sheriff of that county. He prayed that he be not adjudged in contempt because of any alleged violation of the decree, and that the decree be so modified as to give him custody and control of the child, the best interest of the child requiring it. The evidence found in this record is voluminous, and we do not think that it is at all necessary to set it out in this statement of the facts, or later in the opinion; for the sake of an innocent child we had rather not. It is recited in the bill of exceptions: 'At the conclusion of the evidence in said case, counsel for plaintiff insisted upon the right to argue said case, and said judge, then and there presiding, stated that there was no necessity for argument and refused to hear or permit arguments in said case, to which said ruling the plaintiff then and there excepted and now excepts and assigns said ruling as error, as being contrary to law, and says that said judge then and there should have permitted counsel for plaintiff to argue said case, and should not have denied counsel for the plaintiff the right to argue the same before entering any order in said case.' The trial judge declined to certify as true these recited facts but, concerning the occurrence complained of, did certify as true the following: 'This hearing was conducted informally in chambers and lasted from 10:30 a. m. until 7:00 p. m., and immediately following the close of the evidence, no request was made to argue the case, and the court commended the grandfather of the child in question for several minutes, and then asked the question of the plaintiff's counsel why they had not produced Don Mullins as a witness to which they answered that they would like to argue the case and thought they could have him present before arguments were completed. The court then stated that he did not think it necessary to have arguments, since he had paid particular attention to all of the testimony in the case and that it would not be helpful to the court for arguments. However, in spite of this, counsel for the plaintiff informally discussed the matter for 5 or 10 minutes until counsel for the defendant stated that, if arguments were to be made, they desired to be heard also. No objections were made by either side at this point, and the court then rendered judgment as specified in the bill of exceptions. At no time during the informal discussion did the court form an opinion that plaintiff's counsel desired to argue the case for the sake of argument, but only for the purpose of delaying the matter until the witness, Don Mullins, could be produced. It was not until the date set for the approval of the bill of exceptions, did the court become aware that the plaintiff was insisting upon argument of the case, and...