Perkins v. Courson

• Citation: 135 S.E.2d 388,219 Ga. 611
• Decision Date: 06 February 1964
• Docket Number: No. 22248,22248
• Parties: Johnnie PERKINS v. Herbert COURSON et al.
• Court: Georgia Supreme Court

Page 388

135 S.E.2d 388

219 Ga. 611

Johnnie PERKINS v. Herbert COURSON et al.

No. 22248.

Supreme Court of Georgia.

Feb. 6, 1964.

Syllabus by the Court

There was ample evidence to authorize the trial court to find that the father was not a fit person to have custody of this child, and, therefore, we cannot say that it was an abuse of discretion to award its custody to the grandparents.

Albert E. Butler, Jesup, for plaintiff in error.

Thomas & Thomas, W. Glenn Thomas, Jr., Jesup, for defendant in error.

GRICE, Justice.

This is a review of an award of custody of a child to its grandparents. The father, Johnnie Perkins, filed a petition for habeas corpus in the Superior Court of Wayne County against the maternal grandparents, Mr. and Mrs. Herbert Courson. The grandparents filed their response which prayed that custody be awarded to them. Subsequently, the trial judge entered an order denying the writ of habeas corpus and awarding the child to the grandparents, with visitation privileges to the father. The exception is to that judgment.

The father's petition alleged, insofar as material here, as follows: that he is the sole surviving parent and father of his named minor son, five years of age; that the grandparents were illegally detaining the child from him; that he has demanded said child but has been refused; that the maternal grandparents, upon the mother's death, took possession of the child and advised petitioner that they would keep it and have failed to redeliver it; that such detention and restraint is illegal; that he, as the child's father, is entitled to its custody and control and has not by contract or otherwise released his rights; and that he is an 'able bodied man of good habits and has a wife, home and other children, earning a good living with good reputation in which to provide for' his child. The prayer was for issuance of the writ against the grandparents requiring them to produce the child.

The grandparents in their response to the petition denied all its allegations, except that petitioner was the sole surviving parent and father of the child and that they have possession of it.

In the nature of a cross action they alleged substantially as follows: They are the maternal grandparents of the child. Its mother separated from its father on June 17, 1958, when it was only two and a half months old, and it has remained in their home and in their possession since them. The child's mother was divorced from the father in November, 1958, and was awarded custody in a decree which required the father to pay ten dollars weekly for the child's support. They have maintained supported and cared for it in their home in Jesup, Georgia, since June 17, 1958. The only help or assistance received for the child's support and maintenance was what its mother gave them. The father apparently had no love for the child, failing for eight to ten months at a time to visit with it. He has 'wholly failed to provide for the necessaries of life for said child and has abandoned same to its mother and [the grandparents], thereby forfeiting his parental authority over said child as provided by Georgia Code 74-108(3).' He has failed to pay any money required by the court decree, and they have and are paying all expenses for said child.

The child's mother died in February, 1963, whereupon the father told the grandmother that he appreciated what she had done for it, 'that she had been a good mother for him, that the child was in a good home, and so far as he was concerned they need not worry that the child could stay there.' The father 'does not love said child, has failed to contribute to its support, has abandoned it all times past and is now for the first time asserting any semblance of fatherhood for the child.' The father has remarried, has two children, and they live in a house with no modern conveniences, and the child will receive no attention if awarded to him.

The father 'is physcho [sic], that his mind at times is unbalanced and has a violent temper, beat said child's mother at his pleasure during their marriage and since divorce broke his ex-wife's arm, tore her clothes off her, bruised and choked her without cause or reason.' The grandparents have registered the child in kindergraten garten for September, 1963, have bought and are paying for educational insurance for it, and 'have done and will do more for said child's welfare than [the father] has done or will do. They love said child any want its custody.'

They prayed that, because of the father's failure to provide necessaries for it, his failure to aid or assist in caring for its welfare, his failure to bestow or show any fatherly affection for it, and his total lack of interest and abandonment of it, the father's prayers be denied and that they be awarded full custody.

1. While the foregoing pleadings raised issues of failure of the father to provide necessaries for the child and abandonment by him under Code § 74-108(3), there was no evidence to sustain those issues. The father's uncontroverted testimony was that during the period when the mother had custody he gave her 'some money' for the child. The evidence also shows conclusively that after the mother's death, while the child was in the grandparents' possession, they cared for it without making any request whatever of the father for its support or maintenance. Thus, there was no forfeiture by the father of his parental rights upon this ground. Rawdin v. Conner, 210 Ga. 508(2), (3), 81 S.E.2d 461.

2. The pleadings also raised an issue as to the father's fitness as a custodian for the child. The grandparents denied the father's allegation that he was an able bodied man 'of good habits' and 'with a good reputation in which to provide for the child' and alleged his inattention, lack of recognition and absence of love for the child and that he is 'physchol,' mentally unbalanced at times, has a violent temper, and has committed specific physical acts of violence upon the mother before and after the divorce. The fact that the paragraph in which the grandparents prayed for relief did not recite or characterize the allegations of unfitness which were made in the previous paragraphs did not eliminate this issue from the case. In this connection it should be borne in mind that strict technical pleading is not required in habeas corpus proceedings as to the custody of minor children. Sheppard v. Sheppard, 208 Ga. 422(1), 67 S.E.2d 131; Barber v. Wells, 213 Ga. 1, 96 S.E.2d 595.

There was evidence to sustain the allegations as to the father's unfitness. He acknowledged: 'Yes, I have been in jail several times for fighting and being drunk and I was charged with assault and battery. Yes, I was accused of raping a negrowoman and was held in jail for a while. This was since our divorce.' The grandmother testified: 'Sometimes [the father] has waited for periods of six to eight months before he would come or send for his son * * * [He] has a had temper and has temper fits. I have seen him hit his face with his fists until his face purely bled--during these fits, he would act wild. He had an awful temper. Since their divorce, I know that [he] broke [the mother's] arm and beat her. She called me to Gene's Bar-B-Q where her dress had been torn off and I carried her home. [He] has been to our house while he was visibly drinking.'

It is the general rule that upon the death of the parent who has custody of a child under a divorce decree the right of custody is vested in the surviving parent. Girtman v. Girtman, 191 Ga. 173(5), 11 S.E.2d 782. But we believe this rule is subject to the discretionary power of habeas corpus courts under Code §§ 50-121 and 74-106, looking to the child's interest and welfare. The question here, then, since the father thus acquired the right to custody, is whether the trial judge was justified under Code §§ 50-121 and 74-106 in awarding custody to the grandparents, in view of the evidence as to the father's habits and conduct.

The position has been advanced, in consideration by this court, that since this father had not lost his parental right by one of the modes of Code §§ 74-108, 74-109 or 74-110, he is entitled to custody of his child as a matter of law, and his fitness or unfitness is irrelevant to this determination. (Code § 74-108 provides that parental power shall be lost by voluntary release to a third person, consent to adoption by a third person, failure to provide necessaries or abandonment, consent to the child's receiving the proceeds of his own labor, consent to marriage of the child, cruel treatment; Code § 74-109 authorizes the ordinary to appoint a guardian of the person of a child whose parents treat it cruelly; Code § 74-110 provides that the ordinary may commit to an institution, appoint a proper guardian, or make such other disposition provided by law for a child under the age of 12 when it is made to appear that the child is being reared under immoral, obscene, or indecent influences likely to degrade its moral character and devote it to a vicious life.) That position, as we understand it, is based on the decision of this court in Bond v. Norwood, 195 Ga. 383, 24 S.E.2d 289, where, in affirming an award of custody of the father, it is stated as the basis for the decision that unless the parental power has been lost by one of the modes of the above mentioned Code section, 'the father's right to the custody of his minor child, as against the claim of a third person, is not subject to legal challenge' and there is no discretionary power under Code § 50-121 to make an awarded to a third person.

Although we agree with the result in Bond v. Norwood, supra, we cannot agree with the basis stated for that result. In that case no attack was made on the father's fitness and the statement of facts recites that his neighbors testified that 'he was honest, industrious, sober, and of good reputation,' and he had not forfeited his parental right by any of the modes of C...