Young v. Pearce, 19489

• Decision Date: 17 November 1956
• Docket Number: No. 19489,19489
• Citation: 212 Ga. 722,95 S.E.2d 671
• Parties: Mrs. Mary Pearce YOUNG v. Mrs. Floyd E. PEARCE.
• Court: Georgia Supreme Court

Page 671

95 S.E.2d 671

212 Ga. 722

Mrs. Mary Pearce YOUNG v. Mrs. Floyd E. PEARCE.

No. 19489.

Supreme Court of Georgia.

Nov. 17, 1956.

Mrs. Mary Pearce Young brought a petition for habeas corpus against Mrs. Floyd E. Pearce alleging that Kenneth Pearce, Jr., son of the plaintiff and grandson of the defendant, is being illegally detained. The defendant filed defensive pleadings, in which it was alleged: that the plaintiff and the child's father were divorced in 1950; prior to the divorce, the parties thereto had entered into an agreement which reads in part as follows: 'That whereas the above stated parties are husband and wife, but are now living in a bonafide state of separation, and desire to enter into an amicable agreement with respect to the custody of their little six year old child, Kenneth Pearce, Junior. Now therefore, it is agreed as follows, to wit: (1) That both parties contemplate that said state of separation will continue, and it is agreed by both parties, father and mother, husband and wife, that the said child, Kenneth Pearce, Junior, now six (6) years of age, shall remain with the grandmother, Mrs. Floyd E. Pearce, of Grady County, Georgia, until the further order of the Superior Court of Grady County, Georgia, and the Superior Court of Grady County, Georgia, is to retain jurisdiction for such further orders as might be to the interests of said child. The grandmother to educate and care for the child at the expense of the grandmother during the time the said child remains with his grandmother. (2) Both and each, mother and father, shall have the right to visit with the child, and have the child to visit with them, and each of them, at reasonable times, and when not in school * * * (4) * * * It is agreed that in the event a divorce is granted either or both parties that the same shall not prejudice the rights of either party to this agreement, nor shall it be considered by either party as a judgment affecting the rights of either party to said child. (5) In consideration of the grandmother supporting and educating said child, and properly caring for said child, the mother waives any right to alimony and support for herself'; that a judgment was subsequently entered granting a total divorce between the parties, said judgment reading in part as follows: 'The question of the custody of the minor child and alimony has been settled by the parties and approved by the Judge of the Superior Court of Grady County, Georgia, on August 7, 1950. A copy of said agreement hereto attached, marked Exhibit 'A', and made a part of this decree, and is again considered, ordered, approved and decreed as the judgment of the court in said case.'

The petitioner contends (1) that the judgment was temporary as to custody of her child because of that part of item 4 of the agreement which reads:

'It is agreed that in the event a divorce is granted either or both parties that the same shall not prejudice the rights of either party to this agreement, nor shall it be considered by either party as a judgment affecting the rights of either party to said child'; and, inasmuch as the child's father died in 1951, the legal right to custody is in her; and (2) that the conditions of her home life have materially changed since the rendition of the judgment, which is a circumstance materially affecting the welfare and best interests of her child.

After hearing evidence, the trial court denied the prayers of the petition and to this judgment the petitioner excepts.

Lippitt & Lippitt, Albany, for plaintiff in error.

S. P. Cain, Cain & Smith, Cairo, for defendant in error.

Syllabus Opinion by the Court

MOBLEY,...