Bailey v. Warlick , 196 Ga. 642 ( 1943 )

1. Where, in response to an application for the writ of habeas corpus for custody of an infant child, the defendants objected by special plea to the jurisdiction of the court in which the proceeding was brought, and filed also a general response or answer, and the judge, after hearing evidence, passed two separate and distinct orders, one denying the special plea, and the other awarding custody to the plaintiff, and where the defendants assigned error only upon the judgment awarding custody, no question is presented as to correctness of the ruling on the special plea.

2. The evidence did not as a matter of law demand a finding that the plaintiff father had relinquished parental control and right of custody to the defendants; his own testimony being to the effect that his surrender of such custody was only temporary, and this evidence not being conclusively rebutted by the other evidence.

3. The evidence as to fitness of the father for custody of the child, and as to suitability of the home in which he proposed to take it, being conflicting, and that introduced by him being sufficient, if believed, to authorize a finding in his favor upon these issues, the judgment awarding custody to him cannot be disturbed by this court, in so far as these questions are concerned. Nor does other cause for reversal appear.

No. 14601. OCTOBER 5, 1943. The exception is to a judgment awarding custody of Katherine Warlick, a child of seven months, to her father, C. R. Warlick Jr., who had brought habeas corpus proceedings against W. C. Bailey and his wife, a sister of the child's mother. It appears from the record that the child was born in an Atlanta hospital on September 9, 1942, and that her mother died two days later. The child was carried to the home of her father in Atlanta, and there remained until November 15, being cared for during this period by the defendant Mrs. Bailey and Mrs. Bailey's mother. She was then taken to the Bailey home in Hogansville, Troup County; and on April 20, 1943, her father instituted the present action in Troup superior court against Mr. and Mrs. Bailey, for the child's custody. The defendants pleaded to the jurisdiction of that court, asserting that on April 16 the judge of the juvenile court of Troup County "assumed jurisdiction of said infant child . . and passed an order to that effect, and said order further provided that said child be placed in the custody of these defendants, subject to the rules, regulations, and requirements of the juvenile court. . . Defendants further aver that they are holding said child under order of the juvenile court, and that the juvenile court of Troup County, Georgia, is a court having jurisdiction of the parties and the subject-matter in controversy. . . Wherefore these defendants pray: that this honorable court hold that it has not jurisdiction, and that the juvenile court of Troup County, Georgia, determine all issues concerning this matter." Attached to the plea was a copy of an affidavit made by the Baileys, on which the judge of the juvenile court entered the judgment referred to in the plea; also copy of that judgment.

The defendants by answer also alleged: Mrs. Katherine Warlick, the mother of the infant in controversy, died on or about November 11, 1942, leaving the two or three days old baby. The child was kept in the home of C. R. Warlick Jr., its father, until November 15, 1942, at which time, and in compliance with a request of the child's mother, that it be given to the defendants, the plaintiff then and there acceded to the wishes of the child's mother and voluntarily relinquished his right as father to the defendants. It was definitely agreed and understood between them and C. R. Warlick Jr., that they were to have the child permanently, and that he was giving the child to them without any restrictions. The plaintiff is not a proper person to have this child, and the home in which he proposes to place the child is not suitable. The defendants are of good moral character, physically, morally, and financially able to rear said child, and they took it with the definite understanding that it was to remain with them as their own child, and they have provided for said child all food, clothing, medical care and attention required since they have had it in their home, and that the plaintiff has not contributed anything to its support. Defendants would not have accepted said child as a temporary arrangement, and would not have taken it into their home and learned to love and care for it as they now do, had the plaintiff not agreed as hereinbefore stated. On or about April 16, 1943, said child was placed in their custody by the judge of the juvenile court of Troup County; and in addition to holding said child under contract with its father, they have the full right, power, and authority to hold said child as a ward of the juvenile court of Troup County. Defendants prayed that the child be awarded to them "as their very own."

On April 30, after a hearing, the judge entered the following order on the plea to the jurisdiction: "On hearing evidence in the above case on the foregoing special plea, it is ordered and adjudged that said plea be and the same is denied." He also passed an order awarding custody of the child to C. R. Warlick Jr., the father.

It is recited in the bill of exceptions: "The defendants having been served and having filed an answer in said case, and both parties having announced ready, the plaintiff introduced evidence in support of his petition, and the defendants introduced evidence to support their answer; and after argument had thereon, the judge then and there presiding rendered judgment awarding custody of Katherine Warlick, subject-matter of said writ, to plaintiff as prayed in said petition, to which judgment awarding the custody of said Katherine Warlick to plaintiff" the defendants excepted.

While all of the evidence except a letter was in the form of affidavits, the affiants may be sometimes referred to aswitnesses, or as having testified. The plaintiff testified: "Following Mrs. Warlicks' death the plan was for Mrs. J. W. Pruett [her mother] and Mrs. W. C. Bailey to live with C. R. Warlick Jr., and help him with the child. Mrs. Pruett was not able physically to do that, then Mrs. Bailey prevailed upon [him] to let her keep the child temporarily and until he could make arrangements to take the child himself. Mrs. Bailey first wanted both children, but deponent would not think of parting with both the children, even temporarily. That the older child remained with deponent and [deponent's] father and mother; after the baby had been with the Baileys about three months they asked deponent to allow them to adopt the child, which was refused. Arrangements were then made to take the child as deponent had originally intended, and that he notified the Baileys he would be down for the child." He further testified, that after he notified the Baileys of his intention to come for the child, they employed an attorney, and sent to deponent the "papers issued by the juvenile court of Troup County, Georgia, without notice and without opportunity being given C. R. Warlick Jr., for a hearing," that deponent "has a nice home to keep the child in, with plenty of room, plenty of playground, and convenient to both school and church. . . He is now in position to support, educate, and rear her, and do the same for this child as he has for his older child."

C. R. Warlick Sr. and his wife testified: "That they are father and mother respectively of C. R. Warlick Jr., and live in a five-room apartment, with sufficient room for C. R. Warlick Jr., and his two children; stating they are willing to look after, care for the children, and that C. R. Warlick Jr. is the proper person to have custody of his child; that he has done a good part by the other child, who is eleven years of age; that this child is well-behaved, quiet, and a good child, and attends church and Sunday school regularly and lives an upright Christian life; that C. R. Warlick Jr. does not drink whisky, and there is no reason why he should not have the custody of the child." Other witnesses testified as to the good character of the plaintiff and his parents, and as to their home being a proper place for rearing the infant.

The defendants introduced affidavits to the effect that the plaintiff was sometimes intemperate, was of questionable moral character, and had not properly provided for his wife. It was stated in some of these affidavits, that the plaintiff and his older child resided with his parents and his sister and her husband, in a five-room apartment; that they were not church-going people, were quarrelsome, and that in affiants' opinion this home was not one in which an infant child could be properly cared for and reared. Numerous affidavits, as to the good character of the defendants and the fitness of their home for caring for the infant, were not disputed by the plaintiff. It appeared from the evidence that the plaintiff had paid nothing for the support of the child since the Baileys carried her to their home, but that no request had been made of him as to such support.

Mr. and Mrs. Bailey testified in detail as to the circumstances in which the child was placed in their custody, stating in effect that the plaintiff gave the child to them to keep permanently as their own. Other witnesses testified as to statements claimed to have been made by the plaintiff, and tending directly to support the defendants' contention. One or more of these witnesses testified that they heard the conversation at the time the plaintiff agreed for the defendants to take the child to their home, and that he gave it to them. The defendants introduced a letter written to Mrs. Bailey by the plaintiff, dated November 23, 1942, as follows: "Dear Mae: — Mae, you asked me why I let you have Katherine or why I decided to. I have known all the time that I should but couldn't give her up, but I knew it was best for her to have a mother's care, and you are as near that as I could ask. Mother did all she could, and that was a lots to pull her through the first two months. Mother has always been mighty sweet to me, Mae, and has never done anything or said anything to hurt me in any way, so you see it wasn't her fault, I just knew that some day it would have to be done, and it would be easier on all of us to let you have her while she was young than to give her up later. I know she is getting sweet and cute; sure would like to see her to-day." According to the record, the word "mother" as used in this letter referred to the writer's mother-in-law. As appears above, the judge in one order denied the special plea to the jurisdiction, and in a separate order awarded the custody of the child to the plaintiff. The bill of exceptions assigns error only upon the judgment awarding custody.

1. "The Supreme Court . . shall not decide any question unless it is made by a specific assignment of error in the bill of exceptions . . ." Code, § 6-1607. Accordingly, no decision is required or would be authorized by this court on the question of jurisdiction, as raised by such special plea. SandersManufacturing Co. v. Dollar Savings Bank, 110 Ga. 559 (3), 563 (35 S.E. 777). But, on the question of jurisdiction, seeOwens v. Owens, 191 Ga. 568 (13 S.E.2d 348); Jackson v. Anglin, 193 Ga. 737 (19 S.E.2d 914). While the answer also referred to the order of the juvenile court, it could in no view be treated as res judicata, for the reason that it was entered without notice to the father and without any waiver of notice or service in so far as he was concerned. McAlhany v. Allen, 195 Ga. 150 (4,5) (23 S.E.2d 676).

2. "Until majority, the child shall remain under the control of the father, who is entitled to his services and the proceeds of his labor. This parental power shall be lost by: 1. Voluntary contract, releasing the right to a third party. . . 3. Failure of the father to provide necessaries for his child, or his abandonment of his family." Code, § 74-108. "It is expressly provided by statute that parental power over a child may be lost by ``voluntary contract, releasing the right to a third person,' and this court has so often upheld such contracts that the right to make them is no longer open to question in this State."Lamar v. Harris, 117 Ga. 993, 997 (44 S.E. 866); Bently v. Terry, 59 Ga. 555 (27 Am. R. 399); Saxon v. Brantley,174 Ga. 641 (163 S.E. 504).

Although the entire evidence, except the letter, was in the form of affidavits, we may for convenience refer to the affidavits as testimony. The evidence for the defendants tended very strongly to show that the plaintiff voluntarily surrendered to them custody of his infant child, to keep "as their own;" but the plaintiff testified: "Mrs. Bailey prevailed upon [deponent] to let her keep the child temporarily and until he could make arrangements to take the child himself. Mrs. Bailey first wanted both children, but deponent would not think of parting with both the children, even temporarily. That the older child remained with deponent and [deponent's] father and mother; after the baby had been with the Baileys about three months they asked deponent to allow them to adopt the child, which was refused; and arrangements were then made to take the child as deponent had originally intended." This evidence was sufficient to present an issue for determination by the judge, as to the nature of the agreement; and this is true notwithstanding the letter written to Mrs. Bailey by the plaintiff, stating, among other things: "I just knew that some day it would have to be done and it would be easier on all of us to let you have her while she was young than to give her up later." While this letter tended not only to impeach the plaintiff as a witness, but also to prove the affirmative defense as pleaded, being, as an admission, affirmative evidence in the defendants' favor, it was not conclusive. It was not a contract, to be accepted and enforced unless avoided in some way, but was evidentiary and impeaching only, and thus did not as a matter of law refute the plaintiff's sworn testimony. As to admissions, see Code, §§ 38-403, 38-420;King v. Shepard, 105 Ga. 473 (30 S.E. 634); Raleigh Gaston Railroad Co. v. Allen, 106 Ga. 572 (32 S.E. 622);Phoenix Insurance Co. v. Gray, 113 Ga. 424 (2) (38 S.E. 992); Louisville Nashville Railroad Co. v. Bradford,135 Ga. 522 (5,6) (69 S.E. 870); Wallace v. Mize, 153 Ga. 374 (5) (112 S.E. 724); Carter v. Marble Products Inc.,179 Ga. 122 (2) (175 S.E. 480); United States Fidelity GuarantyCo. v. Clarke, 187 Ga. 774 (3) (2 S.E.2d 608); Hill v.Armour Fertilizer Works, 21 Ga. App. 45 (5) (93 S.E. 511);William Hester Marble Co. v. Walton, 22 Ga. App. 433 (4) (96 S.E. 269); Payne v. Rivers, 28 Ga. App. 28 (2) (110 S.E. 45); Buckeye Cotton-Oil Co. v. Malone, 33 Ga. App. 519 (6) (126 S.E. 913); Dixon v. Cassels Co., 34 Ga. App. 478 (2) (130 S.E. 75); 20 Am. Jur. 1048-49, § 1096; 31 C. J. S. 1022, § 270, 1164, § 380, 1178, § 382.

While the judgment awarding custody of the child to the father contained no reference to the agreement under which she was placed in the custody of the defendants, the court necessarily found against their contention as to the nature of the agreement.Rourke v. O'Neill, 150 Ga. 282 (103 S.E. 428).

3. The plaintiff made no attack upon fitness and ability of the defendants to care for and rear the child; but the character of the plaintiff and the suitableness of the home to which he proposed to carry the child were assailed by several of the defendants' witnesses. Witnesses for the plaintiff testified to the contrary; and the evidence, though conflicting, was sufficient to authorize a finding for the plaintiff on these issues. "The judgment of the court upon the facts, in cases of habeas corpus, is analogous to the verdict of the jury, and will not be disturbed by the reviewing court if there be enough to support it, although there may have been other testimony strongly in conflict with it." Starr v. Barton, 34 Ga. 99. The determination of what is for the best interests of the child is a matter resting in the discretion of the trial court; and such discretion will not be controlled by the reviewing court, unless abused. Smith v. Bragg, 68 Ga. 650; Miller v. Wallace,76 Ga. 479 (2 Am. St. Rep. 48); Awtrey v. Awtrey, 164 Ga. 69 (3) (137 S.E. 760). The mere fact that the father contributed nothing to the support of the child during the time she was in the custody of the defendants did not require a finding against him. Broxton v. Fairfax, 149 Ga. 122, 124 (99 S.E. 292); Bond v.Norwood, 195 Ga. 383 (24 S.E.2d 289).

The plaintiff did not seek custody of the child by reason of any change in condition, but based his action on the right of a father to such custody where it had not been lost in one of the ways provided by law. No cause for reversal appears.

Judgment affirmed. All the Justices concur, except Wyatt, J.,disqualified.