King v. King , 202 Ga. 838 ( 1947 )

1. In so far as the instant petition of a divorced husband, seeking a modification of the original decree as to the custody of a minor child of the marriage, was based upon alleged improper conduct on the part of the child's mother, it affirmatively appeared from such petition and the record in the case in which it was filed that the charges as to such misconduct, other than marriage after divorce, were actually made by the husband in the divorce case and were adjudicated against him by the verdict and decree therein. Willingham v. Willingham, 192 Ga. 405 (1), 406 (15 S.E.2d 514).

(a) The subsequent marriage of the (divorced) wife did not within itself constitute a change of condition adversely affecting the welfare of the child, nor otherwise violate the terms of the decree as to custody. Shields v. Bodenhamer, 180 Ga. 122 (178 S.E. 294).

2. Where in a divorce case the court enters a decree as to the custody of a child or children of the marriage, the duty of the State and the jurisdiction of its courts are continuing, unless and until voluntarily released, or until such jurisdiction is lost in some way. Williams v. Crosby, 118 Ga. 296 (45 S.E. 282); Fortson v. Fortson, 195 Ga. 750 (2) (25 S.E.2d 518); Fortson v. Fortson, 200 Ga. 116 (35 S.E.2d 896); Emrich v. McNeil, 75 App. D.C. 307 (126 F.2d 841, 146 A.L.R. 1146, annotation, p. 1153). It is thus against the policy of the law to permit removal of a child from the jurisdiction of the State unless its welfare would better be served thereby, although such removal may be permitted by the court in its discretion, in a proper case. State v. King, 1 Ga. Dec. 93; Pruitt v. Butterfield, 189 Ga. 593 (6 S.E.2d 786); 27 C. J. S. 1179, § 313; Duncan v. Duncan, 293 Ky. 762 (170 S.E.2d 22, 154 A.L.R. 549, annotation, p. 552); Sneed v. Sneed, 248 Ala. 88 (26 So.2d 561); McGonigle v. McGonigle, 112 Colo. 569 (151 P.2d 977).

3. In the instant case, it appears that, upon an agreement of the parties, the court in its decree rendered in January, 1947, awarded custody of the child to its father (the defendant) until June 1, 1947, then to its mother until September 1, 1947, and after that to its father until June 1, 1948, then to its mother "until September 1, 1948, or the beginning of the annual school term. . . Thereafter, the custody and control of said minor child shall be in the father during the regular school term (normally from Sept. 1st to June 1st), and the custody and control of said minor child shall be in the mother during the annual summer vacation period, until said child shall have reached his eighteenth birthday, or [shall become] self-sustaining, whichever shall occur first." It was further expressly provided "that the father shall either deliver the child to the home of the mother or shall provide transportation for said child, and shall call for or provide transportation for said child to be returned to his custody." The parents both resided in Cobb County, Georgia, at the time the decree was entered. Held:

In view of the principles stated in the preceding note as to continuing jurisdiction and the policy of the law as to removal of the child from the State, and giving to the written agreement embodied in the decree a reasonable intendment according to the evident intention of the parties and the court, the decree is properly construed as awarding custody subject to continuing jurisdiction of the proper court or courts of this State, and not as requiring the father to deliver the child, or to provide its transportation, to the home of the mother except at some place within the State of Georgia, wherein she then resided. While she was free to marry again and to move to some other State, as California, the defendant was not required by the decree to send or deliver the child to her "home," wherever she might choose to live, outside the State of Georgia. See authorities cited in headnote 2, supra (including annotations); also Brown v. Farkas, 195 Ga. 653 (2) (25 S.E.2d 411).

(a) The present case is distinguished by its facts from Tillinghast v. Clay, 152 Ga. 816 (111 S.E. 384), where custody was awarded solely to the parent who later removed to another State, and the decree did not contain any provisions or stipulations such as were expressed in the decree in the instant case. The same statement will apply on principle to Milner v. Gatlin, 139 Ga. 109 (2) (76 S.E. 860). The case also differs on its facts from Jagoe v. Jagoe, 183 Ga. 273 (187 S.E. 874), where the question was whether a divorced husband should be adjudged in contempt of court for failure to pay alimony, and it was held that under the facts of the case the judge did not abuse his discretion in determining such question adversely to him. See, in this connection, Cole v. Addison, 153 Oregon 688 (58 P.2d 1013, 105 A.L.R. 897, annotation, p. 901).

4. Under the preceding rulings, the father did not violate any obligation imposed either by the agreement or the decree in failing to carry or send the child to the home of its mother in California on or before June 1 or before the filing of the instant petition, as contended in the demurrer; and since the original decree did not purport to award custody to the father except for approximately nine months in each year, and the part of it awarding custody to the mother for the remaining three months of each year does not cover the present situation, in view of her removal to the State of California, the petition for modification of the decree stated sufficient cause for reconsideration of the question as to custody as applied to such "annual summer vacation" periods, and for such further order as to these periods as the court may deem proper in its discretion and continuing jurisdiction, keeping in mind the welfare of the child as the controlling consideration. See, in this connection, Mills v. Mills, 150 Ga. 782 (3) (105 S.E. 357); Blaylock v. Hackel, 164 Ga. 257 (5) (138 S.E. 333).

(a) Since the original decree did not deal with the question as to custody for such vacation periods as applied to the facts as they now exist in view of the mother's change of residence to the State of California, the hiatus or vacuum as to custody thus arising could be considered by the court as a matter adversely affecting the interest or welfare of the child, so as to authorize a new determination as related to such periods.

(b) As to failure to exercise discretion, by dismissal of petition, compare Estes v. Estes, 192 Ga. 94, 95 (14 S.E.2d 681).

5. The court erred in sustaining the general demurrer and in dismissing the petition.

Judgment reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.

No. 15961. OCTOBER 23, 1947. After a final judgment in a divorce case, granting a total divorce between the parties and awarding custody of the minor child to the father for approximately nine months in each year and to the mother for the remainder of each year, the father filed a petition, entitled in the divorce case, seeking a modification of the decree in relation to custody, for reasons stated in such petition. The court sustained a general demurrer, dismissing the action, and the father excepted.

It appears from the record that on August 3, 1946, the defendant in error, Mrs. Virgie Lee King, filed a suit in the Superior Court of Cobb County for a total divorce against her husband (now the plaintiff in error), on the alleged ground of cruelty. The plaintiff and the defendant both resided in Cobb County at the time the suit was filed. It also appears that on the same date the suit was filed, the parties entered into a written agreement settling alimony and property rights. The contract also contained the following stipulations as to custody of their only child, then four years of age:

3. The custody of the minor child, Richard Barron, shall be in the father from this date until June 1, 1947, and after that date shall be with his mother until September 1, 1947. From September 1, 1947, until June 1, 1948, the custody of the child shall be vested in the father. Then from June 1, 1948, until September 1, 1948, or the beginning of the annual school term, the custody of the minor child shall be in the mother. Thereafter, the custody and control of said minor child shall be in the father during the regular school term (normally from September 1 to June 1), and the custody and control of said minor child shall be in the mother during the annual summer vacation period, until said child shall have reached his eighteenth birthday, or (shall become) self-sustaining, whichever shall occur first.

4. It is expressly provided herein that the father shall either deliver the child to the home of the mother or shall provide transportation for said child, and shall call for or provide transportation for said child to be returned to his custody.

6. Should either party to this agreement violate the terms of paragraph 3 above, as to the custody of said minor child, that said party shall forfeit all rights of custody to said minor child, and control and custody shall immediately thereafter vest exclusively in the other party to this agreement. Exception is made for traveling time, illness, or acts of God, which might prevent the surrender of the child to the other party.

7. It is expressly understood and agreed that this agreement may be made the judgment of Cobb Superior Court in an action for divorce, now pending or to be shortly filed.

The husband filed an answer to the divorce suit on December 18, 1946, denying the allegations as to cruelty on his part and averring infidelity on her part. He also referred in his answer to the previous contract which they had made on August 3 as to the custody of the child (and other matters), and sought to void this contract so far as it related to custody, by allegations and prayers as follows: At the time of said agreement, he had no proof or means of knowing of the exact conduct of the plaintiff. But immediately after said agreement was entered into, he procured photostatic copies of registrations of his said wife, the plaintiff, in a tourist court in Corona, California, the home town of said B. H. Mayfield. He further obtained photostatic copies of her registration in the San Carlos Hotel, Pensacola, Florida, where said plaintiff registered in April, 1946, as "B. H. Mayfield and Wife" and "Mrs. B. H. Mayfield, Lakewood Drive, Marietta, Georgia." The defendant shows that, by reason of the conduct of the plaintiff, information of which has been obtained since said agreement, he verily believes that the plaintiff is not a fit and proper person, morally, to have the care and custody of said minor child at any time. Wherefore he prayed that the prayers of the plaintiff be denied in toto; that he be granted the permanent custody and control of the minor child, Richard B. King; and also that he be granted a total divorce from the plaintiff.

On January 23, 1947, the jury returned a verdict finding in favor of a total divorce between the parties, "and that contract entered into Aug. 3, 1946, shall be considered as binding upon both parties." The court thereupon entered a decree in accordance with the verdict, and expressly declaring that said contract be made a part of the judgment, and that an attached copy of it be recorded as a part of such judgment and decree.

On June 2, 1947, the defendant, James B. King, filed the petition as first above mentioned, seeking modification of the decree as to the custody of the child, making among others the following allegations:

3. (Although this pleading was termed a petition, and the pleader referred to himself as petitioner, since he was the defendant in the divorce suit he will be hereinafter referred to as the defendant.) The said agreement as to custody was made and entered into at a time when the plaintiff in the divorce suit (wife) was a resident of the State of Georgia, and a change of residence by her was not in contemplation at the time of signing said agreement.

4. After the signing of said agreement, defendant learned of misconduct on the part of the plaintiff, which had a considerable bearing upon the welfare of the child involved.

5. This paragraph stated the substance of the verdict and of the decree, as related to custody.

6. It was not within the province of the jury to determine custody of the minor child, but this was a matter to be determined solely by the trial judge.

7. A change of condition has taken place which substantially affected the interest and welfare of the child, as follows:

(a) Plaintiff has married B. H. Mayfield, a person with whom petitioner had illicit relations during her previous marriage to defendant, and who was named as a correspondent in the divorce case above referred to.

(b) Plaintiff and her husband are now residing in the State of California at 1166 West 6th Street, Corona, California.

(c) The residence of plaintiff is out of and beyond the jurisdiction of the courts of the State of Georgia.

8. Defendant shows that it would work an extreme hardship upon him if he is required to abide by the terms of said agreement. The agreement provides that your petitioner shall on June 1, 1947, either deliver the child to the home of the mother or shall provide transportation for said child, and shall call for or provide transportation for said child to be returned to his custody. As above stated, it was not contemplated at the time of the signing of this agreement that petitioner would be residing in the State of California, but on the contrary she testified at the trial that she contemplated living in Atlanta, Georgia. Plaintiff is now located a distance of three thousand miles from defendant. The obligation to deliver said child or provide transportation for a distance of three thousand miles twice a year is an obligation which defendant is unable financially to comply with. If he delivers said child, it will necessitate his being away from his work from ten days to two weeks twice a year. He is unable to provide transportation.

9. If said child is allowed to be removed to the State of California or any other State, this court will lose jurisdiction of said child and cannot require that it be returned to him as provided in said agreement.

10. Defendant has a good Christian home in which to rear said child, and it is to the best interest of the child to remain with him.

Wherefore defendant prays:

1. That this his petition be allowed and ordered filed.

2. That the judgment and decree of said court, referred to, dated January 24, 1947, be modified and amended so as to grant defendant the full and complete custody of said child, and/or otherwise as to this court may appear proper.

3. For service by publication on Virgie Lee King, now Mrs. B. H. Mayfield.

4. For rule nisi requiring her to show cause why the relief prayed should not be granted.

5. For temporary modification of the original decree as to custody so as to allow the defendant to retain possession of the child until further order of the court.

6. That this court grant such other and further relief as to it may appear proper in the circumstances.

The court granted the temporary relief prayed, and required Mrs. Mayfield to show cause as prayed, fixing June 28, 1947, as the date for the hearing.

Mrs. Mayfield, formerly Mrs. King, demurred to the foregoing petition upon the following grounds:

1. It sets forth no cause of action.

2. The facts stated therein and the record in said cause are not sufficient to authorize the relief sought.

3. The said petition and application, together with the record, and especially paragraph 2 of the instant petition, show that the defendant has forfeited all rights to custody of the child by failing to deliver the child at the home of its mother on June 1, 1947, as provided in the agreement between the parties and in the decree.

4. As to alleged infidelity or misconduct on the part of the plaintiff, it appears from the record that such matters are res adjudicata, same having been pleaded in the defendant's answer in the divorce suit, and the verdict and decree having adjudicated the issues thus made contrary to the contentions of the defendant.

To an order and judgment sustaining the foregoing demurrer the defendant, James B. King, excepted.