Willingham v. Willingham
| Citation | 15 S.E.2d 514,192 Ga. 405 |
| Decision Date | 16 June 1941 |
| Docket Number | 13696. |
| Parties | WILLINGHAM v. WILLINGHAM. |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
1. The court did not err in awarding the custody of the children to the father.
2. It was not error, in a proceeding of this character, for the judge to exclude the parties while the children were testifying.
3. There is no merit in any of the assignments of error.
Franklin S. Chalmers and Chalmers, Jackson & Garner, all of Atlanta, for plaintiff in error.
Heyman & Heyman, of Atlanta, for defendant in error.
The present writ of error involves a controversy between the parties concerning the custody of their two minor children. In 1929 a divorce was granted 'between the parties,' and the mother was given the custody of the children, with alimony. In October, 1935, the father petitioned the court for their custody, setting up as grounds therefor the inability of the mother to care for them, due to illness that had resulted in her commitment to the Milledgeville State Hospital. Service of this petition was made on the mother's duly appointed guardian; and in November, 1935 on the day set for hearing the court passed an order in part as follows: 'It appearing to the court that it is to the best interest and for the welfare of said minor children that the custody of said children be granted' to the father 'it is therefore ordered * * * that' he 'be awarded the custody of said two minor children * * * until further ordered.' In July, 1938, the mother petitioned the court to set aside and vacate the above order, and that the children be awarded to her; it being alleged that she had recovered from her illness and was able to care for the children. She dismissed this petition on August 27, 1940. On the day following she filed another petition with the prayer that the order entered in November, 1935, 'be abrogated of record, and that the custody of said children * * * be returned to [her] in accordance with the verdict of jury and decree dated March 7, 1929.' The father filed a response, and after a hearing wherein much evidence was submitted, including the testimony of the parties and the two minor children, the judge declined 'to abrogate the order * * * entered Nov. 14, 1935,' and ordered 'that the legal custody of the two minor children * * * further order of the court,' with the right further order of the courtH with the right in the mother to visit the children and have them visit her at reasonable times. To this order exceptions are now taken.
1. In cases between aprties involving the custody of their minor children, the rule is established that the judge exercises a sound legal discretion, looking to the best interest of the child or children, and that this court does not interfere with his judgment unless that discretion appears to have been abused. Code, §§ 30-127, 50-121, 74-107; McDowell v Gould, 166 Ga. 670, 144 S.E. 206. We of course recognize it as settled law in this State that the doctrine of res judicata applies in such cases, and that when an award has been made the judge may thereafter exercise a discretion as to the custody of the children only so far as there may be new and material conditions and circumstances substantially affecting the interest and welfare of the children. Lockhart v. Lockhart, 173 Ga. 846, 162 S.E. 129, and cit.; Shields v. Bodenhamer, 180 Ga. 122, 178 S.E. 294; Slate v. Coggins, 181 Ga. 17, 181 S.E. 145. But to make a proper application of this principle in the present case operates in favor of the father, and not, as contended by her counsel, in favor of the mother. The last order actually entered, awarding the custody of the children before the order now the subject of review, was that of November 14, 1935, awarding the custody of the children, before the order not the subject of review, was that of November 14, 1935, awarding the children to the father. Counsel puts forth the argument that the order of November 14, 1935, was temporary and provisional, and that it amounted simply to an award of the custody of the children to the father so long as the mother remained ill or until she recovered from her disability; and that since it appears without dispute that she had been released from the hospital, and the ordinary had discharged her guardian under the Code, § 49-609, the order of November 14, 1935, expired and the original decree remained in full force. The order, however, contains no condition of the character mentioned, and in our view is not so limited in effect, but on the contrary was a permanent adjustment of the custody of the children upon the facts as they existed at the time it was entered. The clause 'until further ordered' did not deprive the order of its finality. See Scott v. Scott, 154 Ga. 659(2), 115 S.E. 2.
It is further insisted, that in August, 1938, the parties appeared before the judge for the purpose of...
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In re Phillips
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