Peeples v. Newman, 17821

• Decision Date: 12 May 1952
• Docket Number: No. 17821,17821
• Citation: 209 Ga. 53,70 S.E.2d 749
• Parties: PEEPLES v. NEWMAN.
• Court: Georgia Supreme Court

Page 749

70 S.E.2d 749

209 Ga. 53

PEEPLES v. NEWMAN.

No. 17821.

Supreme Court of Georgia.

May 12, 1952.

Syllabus by the Court.

1. The judgment of a court of competent jurisdiction of a sister State, awarding the custody of a minor child, which is regular on its face and unimpeached for fraud, is entitled to full faith and credit in proceedings for the custody of the child in this State. Such a judgment may be modified only when it appears that there has been such a change in conditions since the orginal decree as would authorize the modification of a similar judgment rendered by the courts of this State.

2. The evidence in this case was not sufficient to support the judgment of the court below.

3. The judgment of the court below, which, in a habeas corpus proceeding and after a total divorce had been granted to the parties, awarded a sum to the mother for the support of the children, was error.

Hurley Odis Peeples brought this habeas corpus proceeding against Mrs. Geneva Tuten Newman, formerly Mrs. Geneva Tuten Peeples, seeking to recover the custody of two minor children. It was alleged that the plaintiff was the father of the two children, Marian Frances Peeples and Joanne Peeples; that he was entitled to have custody of them by virtue of certain decree of the Court of Common Pleas of Beaufort County, South Carolina; and that they were being illegally detained from him by the defendant. A copy of the orders of the South Carolina court was attached to and made a part of the petition.

The defendant answered and admitted that she has had possession of the two children since June 4, 1951, but denied that she had illegally detained them. She further answered setting out that the plaintiff was not a fit and proper person to have the custody of the children; and that there had been substantial changes in conditions affecting the welfare of the children since the decree awarding custody was rendered. By way of cross-bill, the defendant asked for permanent custody of the children and for their support.

At the hearing, properly authenticated copies of two decrees by the Court of Common Pleas of Beaufort County, South Carolina concerning the custody of the two children here involved were admitted in evidence without objection. The first decree was rendered on March 22, 1945. This decree in substance gave the custody of the children to each parent for six months of each year until the oldest child reached school age. Thereafter, custody was awarded to the father for the nine months during the school year, and to the mother during the vacation period. There was no provision for alimony for the support of the wife or the children.

On November 24, 1945, the mother (the defendant in this action) brought suit in the Court of Common Pleas of Beaufort County, South Carolina, seeking the custody of the children here involved, in which she alleged that there had been a change of conditions since the original decree which authorized the modification of the judgment previously rendered. In the second decree above referred to, it was held that there had not been such a change in conditions as would authorize the modification of the previous decree.

The plaintiff in the court below testified that he delivered the children to the defendant in June, 1951, in accordance with the decree of the South Carolina court and that the defendant had refused to return them when it came time to enter them in school. He further testified that he was financially above to provide for the children; that he could and did provide a good home for them; and that he had a good reputation in his community. Several affidavits were introduced to the effect that the plaintiff had provided a good home for the children; that he was a man of good character; that his financial condition was good; and that the children were in good physical condition and had received proper medical care when they were with the plaintiff.

There were several witnesses for the defendant, who testified that the defendant was a fit and proper person to have the custody of the children; that the children had received good care when they were with the defendant; and that she had provided a good home for them. The defendant herself testified that both she and her husband loved the children and wanted them to remain with them. The husband testified to the same effect. The defendant further testified that she had not refused to allow the children to return with their father, but that they had refused to go with him. The defendant also testified that when the plaintiff brought them to her the last time, the clothes they wore were the same ones they wore when they went to stay with the plaintiff nine months esrlier, and that they were too small for them.

When the hearing was concluded, the judge of the court below took the case under advisement, and later rendered a decree giving the mother custody of the children during the school months, and the father custody during the vacation period, on condition that he pay $25 per month for each child to the mother for the support of the children while they were in her custody. The order also provided that the father should give good and solvent bond in the amount of $2000, conditioned upon the return of the children to the mother as provided in the order. To this judgment, the plaintiff in error excepted and assigns the same as error.

C. Wesley Killebrew, Augusta, for plaintiff in error.

John F. Hardin, Augusta, for defendant in error.

WYATT, Justice.

1. The decision in this case involves the validity and effect of the judgment of the courts of a sister State. There is no question in this case as to the jurisdiction of the South Carolina court to award the custody of the children here involved, both parties and the children having been within the jurisdiction of that court at the time the award was made.

It is a well-settled rule of law in this State that 'A judgment of a court of competent jurisdiction in another state, awarding the custody of a child to a named person, which judgment is regular on its face and unimpeached for fraud, is conclusive of the status at the time of its rendition, and will be accorded full faith and credit when introduced in proceedings in this state for the custody of the child.' Jernigan v. Garrett, 155 Ga. 390, 117 S.E. 327. See also Milner v. Gatlin, 139 Ga. 109, 76 S.E. 860; Spann v. Edwards, 139 Ga. 715, 77 S.E. 1128; McDowell v. Gould, 166 Ga. 670, 144 S.E. 206; Hammond v. Hammond, 90 Ga. 527, 16 S.E. 265.

There is nothing to the contrary in Brandon v. Brandon, 154 Ga. 661, 115 S.E. 115, because in that case the child whose custody was being determined was not within the jurisdiction of the court when the award was made.

However, a judgment awarding the custody of a child, whether rendered by the courts of a sister State or by the courts of this State, may be modified upon application when it is shown that there is such a change of conditions since the rendition of the decree as will affect the welfare of the child. See Milner v. Gatlin, supra. Therefore, it appears from the rules announced in the cases above cited that, before the courts of this State are authorized to modify the judgment of a court of competent jurisdiction of a sister State awarding the custody of a child, the judgment being regular on its face and not impeached for fraud, it must appear that there has been such a change of conditions as would authorize the modification of a similar judgment rendered by the courts of this State.

2. The question, then, which is presented in this case is...