Milner v. Gatlin
| Decision Date | 14 August 1915 |
| Docket Number | 532. |
| Citation | 85 S.E. 1045,143 Ga. 816 |
| Parties | MILNER v. GATLIN. GATLIN v. MILNER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
As a general rule, it is not permissible for a party to attack a judgment for fraud in a collateral proceeding. But where the parties to a divorce decree, rendered by a court of the state of Texas, at the time both were residents of that state subsequently remove to Georgia, and one of them brings habeas corpus for a minor child of the marriage, in the possession of the other party, and the respondent sets up the Texas divorce decree as establishing his right to the custody of the child, the applicant may show that the provision in the decree disposing of the child was obtained by fraud. Likewise the respondent may repel the charge of fraud by competent evidence.
In a contest between parents over the possession of a child of the marriage, witnesses should not be permitted to give their opinion that one or the other of the parties is an unfit and improper person, or that the interest of the child will be best subserved by awarding its custody to one of the contending parties.
Testimony of a witness that people in the neighborhood of one of the parties had denounced his character as bad, but refused to give an affidavit to that effect because of fear of injury to person or property, is hearsay and inadmissible.
A decree in a divorce suit awarding a child of the marriage to one of the parties is prima facie evidence of the legal right to its custody, but is not conclusive in habeas corpus proceedings, where the circumstances and conditions pertaining to the fitness of the parent, arising since the date of the decree, are involved. If, since the decree, the circumstances have changed, a habeas corpus court may award the custody to the other parent, or to a stranger, if the welfare of the child demands it.
Error from Superior Court, Pike County; Robt. T. Daniel, Judge.
Petition by Mary F. Gatlin for writ of habeas corpus against C. W Milner. There was a judgment for petitioner, and respondent brings error, while petitioner assigned cross-errors. Reversed on the main bill of exceptions, and affirmed on the cross-bill.
See also, 139 Ga. 109, 76 S.E. 860.
Earl P. Patterson and Cleveland & Goodrich, all of Griffin, for plaintiff in error.
William H. Beck and W. E. H. Searcy, Jr., both of Griffin, for defendant in error.
EVANS, P.J. (after stating the facts as above).
1. The court allowed Mrs. Gatlin to testify concerning the procurement of her signature to the written contract between herself and husband, wherein she consented that the court might award, in the pending divorce proceeding, the child of the marriage to the husband, and she agreed upon a division of their property in the event a divorce decree was entered. Her testimony was to the effect that, while confined in bed by illness, her husband brought into her room a stranger whom he introduced as his attorney, and who notified her that a suit for divorce had been filed, on which they desired her to acknowledge service; that both represented that they did not wish to take the child from her, and that the court would allow the child to stay with her; that she signed the paper without reading it and without knowing its contents, and in the belief that it was but an acknowledgment of service of the divorce suit, as it was represented; that afterwards her husband and his lawyer came to her while she was still confined to her room by illness, and gave her $250 as being her part of the property, and she signed a receipt for the money; and that she retained the custody of the child until her husband abducted it and carried it off to Georgia, when for the first time she found out that the child had been awarded to the husband in the divorce decree. Objection was made to this testimony, on the ground that it was an attempt to collaterally impeach the decree of divorce. The record is not clear that Mrs. Gatlin knew, when she contracted her second marriage, that the divorce decree gave the custody of the child to the husband, so as to apply any estoppel on that point. The purport of her testimony is that so much of the divorce decree as relates to the custody of the child was procured by fraud; and the question is: Can this attack on the judgment be made in this case? Ordinarily it is not permissible for a party to attack a judgment for fraud in a collateral proceeding. Alabama Great Southern Ry. Co. v Hill, 139 Ga. 224, 76 S.E. 1001, 43 L.R.A. (N. S.) 236, Ann.Cas. 1914D, 996. The policy of the law which forbids the indirect impeachment of the judgment is that it is the business of a litigant to be on his guard against fraud and trickery; but, if his rights are nevertheless infringed, he has his proper remedy by action or motion to annul the judgment, or by application to equity for relief. It appears that both Mrs. Gatlin and Milner, at the time of the filing of the present application, were residents of this state. Marriage being a status, and both parties being residents of this state, the courts of Texas have no jurisdiction to fix the status of the child of the marriage, by amendment of the divorce decree. If that portion of the divorce decree was obtained by the fraud of the husband in representing to the court that the wife assented to an award of the child to his custody, she has the right to attack the judgment on that ground in some forum. If, by reason of the parties being residents of the state of Georgia, the Texas court is without jurisdiction to determine this question, when the Texas decree is offered in...
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