Moody v. Moody
| Decision Date | 14 March 1942 |
| Docket Number | 14061. |
| Citation | 19 S.E.2d 504,193 Ga. 699 |
| Parties | MOODY v. MOODY. |
| Court | Georgia Supreme Court |
Rehearing Denied March 30, 1942.
Syllabus by the Court.
1. It is not necessary, at an interlocutory hearing in an action for divorce, to entitle the court to award the custody of children of the parties, that such children be brought personally into court.
2. A petition for divorce, wherein it is alleged that the plaintiff 'sues in this action for the custody and control' of named children of the parties, and prays 'that the custody of the two minor children be awarded to the petitioner,' upon which the judge by an order for interlocutory hearing provides that a copy of the petition and order be served on the defendant, is sufficient as against an attack that the pleadings do not authorize the court on interlocutory hearing to temporarily award custody of one of the named minor children.
3. Under proper construction of the order of the court at the interlocutory hearing, awarding custody of the children to the wife, such disposition was tempoary and not permanent. Such order being temporary, the judge at chambers and in a county other than that in which the defendant resides, has jurisdiction in an action for divorce and custody of children, where proper notice has been given to defendant, to award custody of the children pending the litigation.
4. A superior court or the judge thereof is not without jurisdiction to make an award of the custody of minor children pending the litigation, and temporary alimony to the wife, despite the pendency of a habeas corpus proceeding involving one of the children before the ordinary between the same parties.
5. Proof of the pendency of a former action for divorce between the parties does not operate to prevent a judge on interlocutory hearing from making an award of temporary alimony and custody of children pending the litigation.
6. The evidence supported the award of temporary alimony attorney's fees, and custody of the minor children pending the litigation to the wife, and there was no abuse of the discretion of the trial court.
7. Under the evidence the sum of $12 per month awarded for tempoary alimony was not excessive.
Hamilton Kimzey, Harbert B. Kimzey, and Frank Jackson Adams, Jr., all of Cornelia, for plaintiff in error.
A. H. Henderson, of Cleveland, for defendant in error.
1. The first contention of the plaintiff in error is that the court, at the interlocutory hearing in an action for divorce where the custody of two minor children was awarded to the wife, was without jurisdiction of the person of one of the children who was not present in court. The record shows that at the hearing the husband was represented by an attorney. There was no suggestion that the wife, husband, or minor child was not within the territorial jurisdiction of the court, nor was any plea to the jurisdiction filed. By statute the court is authorized, in an action for divorce, to determine who shall have custody of the children of the marriage. Pending an application for divorce the court in the exercise of a sound discretion may, as between the parties, withdraw minor children from the custody of either. Code, § 30-127. In suits for divorce the presiding judge may, either in term or vacation, hear and determine who shall be entitled to the care and custody of the children pending the litigation. § 30-206. We do not find any requirement in any of the statutes relating to the award of custody of children in an action for divorce that the children be brought personally into court. In this respect the statutes authorizing the court to determine who shall have the custodv of children in an action for divorce differ from habeas corpus. In a habeas corpus proceeding the form of writ specified by the Code, § 50-106, commands the production of the body of the person alleged to be illegally detained. No such writ is required in an action for divorce where the custody of the children is one of the matters to be passed on by the trial judge. While the particular question presented by this contention does not appear to have been passed upon previously by this court, it has been decided in other jurisdictions, in the cases viz.:Mollring v. Mollring, 184 Iowa 464, 167 N.W. 524; Power v. Power, 65 N.J.Eq. 93, 95, 55 A. 111; and Pieretti v. Pieretti, 176 A. 589, 13 N.J.Misc. 98, from which it is stated in 19 C.J. 342, § 790, and 27 C.J.S., Divorce, p. 1164, § 303, as follows: 'It is not necessary' in an action for divorce, to entitle the court to award the custody of the children of the parties, 'that the children be brought personally into court by writ of habeas corpus or otherwise.' We are not aware of any principle of law or statute in our State which the above rule would offend. Hence the first contention of the plaintiff in error is without merit.
2. In paragraph 9 of the petition, after naming Lois Moody and William Moody, minor children, it is alleged that the plaintiff 'sues in this action for the custody and control of said children,' and she prays 'that the custody of the two minor children be awarded to petitioner.' The order and rule nisi issued by the judge for the interlocutory hearing provided that the defendant be served with a copy of the petition and order. Thus the defendant was apprised that the custody of both minor children was contemplated as a part of the subject matter of the interlocutory hearing. The contnetion of the plaintiff in error that the pleadings did not authorize any award of the custody of the minor, Lois Moody, is without merit.
3. Another contention is made, that the hearing was without the county on interlocutory hearing, and that the court was without authority to make any final award of the custody of the children. Interpreting this assignment of error as an attack solely on the premise assumed by the plaintiff in error, that the award was final, we examine that part of the order relating to the custody of the children to determine if it was a final award or simply a temporary disposition of the children. The applicable portion of said order reads: 'It is further ordered that the custody of both minor children, to wit: Lois Moody and William Moody, be and they are awarded to the plaintiff, Mary Moody, and their custody is by this order placed in her.' An almost identical order was passed on by the court in Cason v. Cason, 158 Ga. 395, 401, 123 S.E. 713, 715. The order in the Cason case, passed upon at interlocutory hearing, read: 'Ordered further that the custody of the two minor children, Mildred Cason and Geneva Cason, be awarded to their mother, the plaintiff.' It was there held: 'Under proper construction of the order of the courlt awarding the custody of the children to the wife, such disposition was temporary and not permanent.' In the instant case the order awarding the custody of the two minor children will be treated as a temporary disposition of the children pending the litigation. Kniepkamp v. Richards, 192 Ga. 509(2b), 16 S.E.2d 24. A judge at chambers, and in a county other than that in which the defendant resides, has jurisdiction in an action for divorce and custody of children, where proper notice has been given to defendant, to award custody of...
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