Perry v. Perry
| Decision Date | 09 October 1956 |
| Docket Number | No. 19467,19467 |
| Citation | 212 Ga. 668,95 S.E.2d 2 |
| Parties | Virginia L. PERRY v. Frank Harris PERRY. |
| Court | Georgia Supreme Court |
A. J. Whitehurst, Thomasville, Whelchel & Whelchel, Moultrie, for plaintiff in error.
Homer C. Eberhardt, Franklin, Eberhardt, Barham & Coleman, Valdosta, Wm. H. Riddlespurger, Moultrie, for defendant in error.
Syllabus Opinion by the Court.
The marriage between Frank Harris Perry and Virginia L. Perry was dissolved by divorce on June 23, 1954. Custody of their minor son was awarded to the mother with specified visitation rights in the father. The custody judgment recites: There was no exception to the divorce judgment or to the judgment fixing custody of the child. In the same case and on June 7, 1956, the father filed an application to modify or amend the custody judgment, alleging as ground therefor that his physical and mental condition had materially improved since the custody judgment was rendered, and that his son was in need of fatherly care. He prayed for a rule nisi requiring the plaintiff (the mother) to show cause on a date and at a place to be fixed by the court why the custody judgment of July 22, 1954, should not be modified so as to enlarge the applicant's visitation rights. However, the applicant did not pray for process. The mother made a motion to dismiss the application on the ground that the court was without jurisdiction to modify or amend the final judgment fixing custody. She also demurred to it generally on the ground that it stated no cause of action for the relief sought. The court overruled both the motion to dismiss and the demurrer. The mother excepted. Held:
1. A judgment fixing the custody of a minor child of divorced parents is a final one on the facts then existing, and any attempt by the trial judge to retain jurisdiction of the child is a nullity. Anthony v. Anthony, 212 Ga. 356, 92 S.E.2d 857, and citations.
2. When a divorce is granted between the parents of a minor child, it is well settled by numerous decisions of this court that a judgment fixing custody of the child is conclusive between the parties, and the principle of res judicata is applicable, unless a material change of circumstances substantially affecting the welfare and best interest of the child is shown. Handley v. Handley, 204 Ga. 57, 48 S.E.2d 827; Madison v. Montgomery, 206 Ga. 199, 56 S.E.2d 292; Gibbs v. North, 211 Ga. 231, 84 S.E.2d 833. But where there has been a material change of circumstances substantially affecting the welfare and best interest of a child whose custody has been previously fixed by a final judgment, an independent proceeding may be instituted for a new custody judgment. Danziger v. Shoob, 203 Ga. 623, 48 S.E.2d 92. In Richards v. McHan, 139 Ga. 37, 76 S.E. 382, 383, this court unanimously held that, after the adjournment of the term during which it was rendered, a judgment fixing custody of a child could not be amended on the merits of the cause by reason of facts or conditions subsequently transpiring. There it was said: 'If the grandmother desires to contest with the father his right to the possession of his child because of matters transpiring since the judgment, she has her remedy, but that remedy is not by petition to amend the judgment.' Since the Richards case was decided in 1912, this court has in several cases held, or the language used would so indicate, that where there has been a material change in the conditions or circumstances affecting the welfare of the child, the court rendering the original judgment has continuing jurisdiction to amend or modify it on an application filed in the case at a term subsequent to the one during which it was rendered. For some of such cases, see Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518; Ponder v. Ponder, 198 Ga. 781, 32 S.E.2d 801; King v. King, 202 Ga. 838, 44 S.E.2d 791. The rulings made in those three cases are in conflict with the one made in the Richards case, supra, and the Richards case being a unanimous decision as to the question here involved and an older one, it is binding precedent and controlling. The ruling made in the Richards case was the law of this State when a different ruling was made in the subsequent custody cases, and the...
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