Mallette v. Mallette, 22691
| Decision Date | 05 November 1964 |
| Docket Number | No. 22691,22691 |
| Parties | Sandra Combes MALLETTE v. James Clifford MALLETTE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. In an action for child custody based on a change of conditions since the decree awarding custody to the mother, evidence of the unfitness of the parties must be confined to matters transpiring subsequently to the decree.
2. The best evidence rule does not preclude the admission of testimony, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of an independent fact, to which the writing is merely collateral or incidental.
3. A judgment fixing the custody of minor children is conclusive between the parties unless a material change in circumstances substantially affecting the welfare of the children is shown, and the finding of the trial judge on this question will not be disturbed by this court unless it appears that he has abused his discretion.
Pursuant to a divorce decree granted to Sandra C. Mallette against her husband, James C. Mallette, custody of their two minor children was awarded to the mother on January 11, 1963. On April 14, 1964, she filed a petition for writ of habeas corpus against the father in which she alleged that he was holding the children illegally in that said children had been awarded to her as aforesaid. The father filed his answer denying the allegations of the petition and alleging that since the divorce the children have been reared under immoral, obscene, and indecent influences, have been neglected, not taken to Sunday school, and that it would be to the test interest of the children for them to be awarded to him since he has remarried and is now able to furnish a home and properly care for them.
The court after hearing denied the mother's petition for writ of habeas corpus and granted custody of the two minor children to the father. It is to this judgment and to certain evidence excluded and other evidence admitted over objection that plaintiff in error, Sandra Mallette, makes exception.
Arthur M. Smith, Dublin, Eva L. Sloan, Milledgeville, for plaintiff in error.
B. B. Hayes, Dublin, for defendant in error.
1. During the hearing the mother made a motion that evidence be allowed regarding the conduct of the parties prior to the divorce decree of January 11, 1963, to show that no change of condition had occurred and that the father was unfit for custody. Such evidence was introduced regarding the conduct of both parties. The court, however, reversed itself and excluded all evidence of misconduct of either party before the divorce decree, and the mother assigns error on this exclusion.
This assignment of error is without merit. Evidence as to a change of conditions affecting the welfare of the children that would render a prior judgment inconclusive is not necessarily limited to a change of circumstances of the parent to whom the initial award was made, but includes any new and material change in the circumstances of either parent of the children. Handley v. Handley, 204 Ga. 57, 59, 48 S.E.2d 827. This being true, however, can evidence of the circumstances or misconduct of the parents prior to their divorce be admitted in determining in a subsequent habeas corpus proceeding for child custody whether the mother is now unfit and whether the father is now fit to have custody?
We are of the opinion that this question must be answered in the negative and that the trial judge properly excluded the evidence of misconduct of the parties prior to the divorce decree. The issue here of fitness concerns present fitness, based on conduct since the divorce, and the conduct of the parties before the divorce is not now material since it relates to their past conduct which has already been considered in the former adjudication giving the mother custody at that time. The judgment awarding custody to the mother was conclusive that she was a fit custodian at that time, but the evidence admitted in this case should show whether or not she is now a fit and proper custodian. In Milner v. Gatlin, 139 Ga. 109(1), 76 S.E. 860, where the father had been awarded custody and the mother brought a habeas corpus proceeding for custody, this court held: 'In a subsequent proceeding by habeas corpus for the possession of the child between the parties to the decree, evidence as to the unfitness of the father will be confined to matters transpiring subsequently to the decree.' See also Daniels v. Daniels, 213 Ga. 646, 100 S.E.2d 727; Drake v. Drake, 187 Ga. 423(4), 1 S.E.2d 573; Kniepkamp v. Richards, 192 Ga. 509, 510(8), 16 S.E.2d 24. Likewise, evidence as to the unfitness of the parties here must be confined to matters transpiring subsequently to the decree.
Therefore, the trial judge did not err in excluding evidence of the misconduct of the parents prior to the divorce decree.
2. The mother objected to the...
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Scott v. Scott, S02A1909.
...of custody is warranted but rather the factual situation at the time the custody modification is sought.4 See Mallette v. Mallette, 220 Ga. 401, 403(1), 139 S.E.2d 322 (1964); Danziger v. Shoob, 203 Ga. 623, 625, 48 S.E.2d 92 Remarriage and relocation directly affect a child but they do not......
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...the appellant was present at the store with an interstore transfer slip prior to committing the armed robbery. See Mallette v. Mallette, 220 Ga. 401(2), 139 S.E.2d 322. 6. The appellant's allegation in enumeration 6 that the pistol taken from him at the time of his arrest was seized in an u......
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Bodrey v. Cape, 44550
...of children and a different award may be entered in a proper proceeding when such change is shown to the court. Mallette v. Mallette, 220 Ga. 401(3), 139 S.E.2d 322; Ponder v. Ponder, 198 Ga. 781(3), 32 S.E.2d 801; Madison v. Montgomery, 206 Ga. 199(1), 56 S.E.2d 292; Perry v. Perry, 212 Ga......
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Gould v. State
...to a mental institution, to which the relationship with the writing itself was merely collateral or incidental. See Mallette v. Mallette, 220 Ga. 401, 403(2), 139 S.E.2d 322 and cits. The exclusion of the testimony would deprive the defendant of a portion of his defense, and would be error.......
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Domestic Relations - Barry B. Mcgough and Gregory R. Miller
...(1999)). 53. Id. at 376, 578 S.E.2d at 880. 54. O.C.G.A. Sec. 19-9-1(b) (1999); O.C.G.A. Sec. 19-9-3(b) (1999). 55. Mallette v. Mallette, 220 Ga. 401, 139 S.E.2d 322 (1964). 56. 276 Ga. at 375, 578 S.E.2d at 879-80. 57. O.C.G.A. Sec. 19-6-15 (1999). 58. 276 Ga. 627, 580 S.E.2d 206 (2003), c......