Perry v. Perry

• Decision Date: 07 February 1958
• Docket Number: No. 19941,19941
• Citation: 213 Ga. 847,102 S.E.2d 534
• Parties: Virginia L. PERRY v. F. H. PERRY.
• Court: Georgia Supreme Court

Page 534

102 S.E.2d 534

213 Ga. 847

Virginia L. PERRY v. F. H. PERRY.

No. 19941.

Supreme Court of Georgia.

Feb. 7, 1958.

Rehearing Denied March 7, 1958.

Syllabus by the Court

1. The petition alleged a cause of action, and the trial court did not err in overruling the defendant's motion to dismiss and general demurrers.

2. The rulings on the special demurrers are treated in the opinion.

In his petition in this case, Frank Harris Perry alleged that, on June 23, 1954, decree was entered in favor of Virginia L. Perry, then his wife, for divorce, alimony, and custody of their minor child, with certain visitation rights in the plaintiff; that, on May 23, 1955, the award of custody to the wife was amended, further limiting the plaintiff's rights of visitation; and that, by reason of a change in conditions which has occurred since the award of custody, the plaintiff is entitled to have custody of the child awarded to him. The prayers were for custody of the child, for an adjustment in the alimony provisions made in the divorce case, and for process, requiring the defendant to answer the complaint. To the petition process was attached, requiring the defendant to be and appear at the Superior Court of Colquitt County within thirty days of service of the petition upon her, then and there to answer the plaintiff's complaint. The petition was amended, and to the petition the defendant filed a motion to dismiss 'on the ground that there is no provision of law for the court to entertain this case,' and filed general and special demurrers. The trial court overruled the motion to dismiss and all of the demurrers, and to these orders the defendant excepts.

A. J. Whitehurst, Thomasville, Whelchel & Whelchel, Moultrie, for plaintiff in error.

Eberhardt, Franklin, Barham & Coleman, Valdosta, Wm. H. Riddlespurger, Moultrie, for defendant in error.

MOBLEY, Justice.

1. By her motion to dismiss and general demurrer, the defendant contends that the petition, seeking change of a prior final decree awarding custody of the child in the divorce action, and praying for the usual process of the court, requiring answer, is not authorized by the law of this State. The plaintiff had previously filed a petition to modify or amend the decree as to custody in the original case, and, on review of the judgment of the trial court, this court, in Perry v. Perry, 212 Ga. 668, 95 S.E.2d 2, 5, held that jurisdiction of the subject matter of custody would not continue in the trial court 'because of the original action, and could not be invoked by a petition or motion filed in that case to amend or modify the original jugment, but could be invoked only by the filing of a new and independent action or habeas corpus * * *' It was after that decision that this petition was filed. While a proceeding seeking change of custody alone should be brought by habeas corpus, as provided by Code, §§ 50-121 and 74-107, as amended, or by a proceeding in the nature of a habeas corpus (independent of the original proceeding awarding custody), directed to the trial judge, who alone has jurisdiction of custody matters, with rule nisi ordering the party against whom the proceeding is brought to show cause why the prayers of the petition should not be granted (Perry v. Perry, supra)--the instant case presents an independent action seeking not only a change of custody but also modification of the original judgment awarding alimony. An act of the General Assembly of 1955 (Ga.L.1955, p. 630) authorized the revision of a judgment granting permanent alimony upon a petition filed by the father or mother showing a change in the income and financial status of the father and provided that 'such petition shall be filed and returnable under the same rules of procedure applicable to divorce proceedings. Such petition shall be filed in the same county in which the original judgment was granted.' This proceeding for modification of the alimony judgment is in the form prescribed by that act and is an alimony case within the meaning of the Constitution, art. 6, § 2, par. 4, giving this court jurisdiction of divorce and alimony cases. Code (Ann.), § 2-3704. In divorce and alimony cases, the court has jurisdiction of the question of the custody of the minor children of the parties (Burton v. Furcron, 207 Ga. 637, 63 S.E.2d 650; Hanson v. Stegall, 208 Ga. 403, 67 S.E.2d 109), and in an action for alimony the the wife may seek custody of minor children (Breeden v. Breeden, 202 Ga. 740(4), 44 S.E.2d 667); and the judge of the superior court has the authority to award their custody in such proceeding (Brown v. Cole, 196 Ga. 843, 846, 28 S.E.2d 76). Therefore, it was proper, in this petition, to seek modification of the alimony judgment and change of custody of the minor child of the parties; and the petition is not subject to the objection made by plaintiff in error that the law did not authorize this proceeding.

2. To show a change affecting the best interest of the child, which would authorize a change in custody, the petitioner relies upon allegations in the petition that, during the time he was deprived of any opportunity to be with or see his son, his wife poisoned his mind against the petitioner, implanted a fear of his father in the mind of the child, and persuaded the child, when he came to visit the petitioner on Saturdays of each week to bring his won lunch with him and to refuse to eat at the table of his father, under the delusion that the food might be poisoned; and upon the further allegations that, at the time the award of custody was made to the wife with the right of the father to have his son visit him on Saturdays, the petitioner was in a poor state of health as a result of a nervous and mental breakdown; and that, since the judgment awarding custody, he has recovered his health and there has been a complete recovery from his mental and nervous condition. In discussing whether the poisoning of the mind of a child by the mother against the father would constitute such change in conditions as to authorize a change of custody, this court, in Fuller v. Fuller, 197 Ga. 719, 725, 30 S.E.2d 600, 604, had this to say: 'It could be forcibly urged that for another to implant in the mind of an immature child the idea that he must not love his father, that the latter is unworthy of such affection, is a matter of serious import, the tendency of which would be to deprive a child of that affection, confidence in, and respect which he should have for his father, and to deprive such child, particularly a male child, of the hope that at sometime or other he might have the companionship of his father, and the latter's guiding hand. In God's economy, a child has to have a father, and this is not merely that there be someone to provide the former with food, raiment, and shelter. There are certain intangible benefits besides these which every normal child is entitled to receive from his father, growing out of the relationship, which can not be furnished when the child is poisoned against the parent. These intangibles spring from affection, mutual affection, and have no existence when the child is made to believe that his father is unworthy of his love. Is it to the interest and welfare of the child that he should grow up under the belief that, unlike most other children, his own father, if appealed to, could not be trusted to suggest, advise, and admonish the child in the light of his own knowledge and experience? That his own father was unworthy of his love and confidence, or even his respect? Would not the implanting of such a view ordinarily have a tendency to cause a child embarrassment and tend to cause him to develop abnormally?'

While the question was not there decided, we are of the opinion that the reasoning of the court is sound, and that proof of such conditions would constitute cogent circumstances which the court in the exercise of its discretion would be authorized to consider in passing upon a petition to change custody based thereon.

While prior to the amendment of Code, §§ 30-127 and 74-107 by an act of the legislature approved March 13, 1957 (Ga.L.1957, p. 412), under decisions of this court it had been held that a change of custody of minor children based on a change in circumstances affecting the welfare of the children must be predicated upon changed...