Mallette v. Mallette, 22691

CourtSupreme Court of Georgia
Writing for the CourtMOBLEY
Citation220 Ga. 401,139 S.E.2d 322
PartiesSandra Combes MALLETTE v. James Clifford MALLETTE.
Docket NumberNo. 22691,22691
Decision Date05 November 1964

Page 322

139 S.E.2d 322
220 Ga. 401
Sandra Combes MALLETTE
James Clifford MALLETTE.
No. 22691.
Supreme Court of Georgia.
Nov. 5, 1964.

Page 323

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

Page 324

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 [220 Ga. 402] 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.

MOBLEY, Justice.

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...

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25 cases
  • Scott v. Scott, S02A1909.
    • United States
    • Supreme Court of Georgia
    • 27 Marzo 2003
    ...change 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......
  • Jones v. State, 28894
    • United States
    • Supreme Court of Georgia
    • 6 Septiembre 1974
    ...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 6. The appellant's allegation in enumeration 6 that the pistol taken from him at the time of his arrest was seized in an uncons......
  • Bodrey v. Cape, 44550
    • United States
    • United States Court of Appeals (Georgia)
    • 5 Diciembre 1969
    ...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......
  • Gould v. State, 48942
    • United States
    • United States Court of Appeals (Georgia)
    • 23 Abril 1974 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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