McLain v. Smith , 207 Ga. 641 ( 1951 )

207 Ga. 641 (1951) 63 S.E.2d 663

McAIN
v.
SMITH et al.

17340.

Supreme Court of Georgia.

February 13, 1951. Rehearing Denied March 14, 1951.

Frank B. Stow and Robert E. Andrews, for plaintiff.

Sloan & Telford and Sidney O. Smith Jr., for defendants.

HAWKINS, Justice.

In this habeas corpus proceeding, brought by the father against the mother for the custody and control of their two minor children, 13 and 8 years of age respectively, it appears that the mother had obtained a divorce from the father in 1945, and that in the decree the custody of the two minor children had been awarded to the mother. The plaintiff testified that he had contributed nothing whatever towards providing necessaries for the younger child from January 1, 1946, to the date of the filing of the present proceeding on October 6, 1950, and that the only contribution made by him to or for the benefit of the older child from January 1, 1946, to the time of the filing of the present proceeding was providing for him while the child visited the father for a period of seven months during the year 1948, and that since the fall of 1948, he sent the older boy $15 and a suit of clothes. "Other than that I have not supported the children except the seven months that Bobby was with me." The father testified that he was earning between $150 and $170 per week. At the close of the evidence, on motion of counsel for the defendant, the trial court entered the following judgment: "It appearing that the plaintiff has failed to furnish said children with necessaries, and has therefore lost his parental control, it is ordered that said petition be and the same is hereby dismissed, plaintiff to pay the costs." To this judgment the plaintiff excepts. Held:

Under Code § 74-108 (3), the right to parental control and custody of a minor child may be lost by the father by his failure to provide necessaries for his child; and while a clear and strong case must be made in order to sustain a contention that the father has lost his right to custody by reason of his failure to provide necessaries, the trial court was authorized to find that such a case had been made by the plaintiff's own testimony, and to dismiss the petition. Proctor v. Proctor, 164 Ga. 721 (139 S.E. 531); Harwell v. Gay, 186 Ga. 80, 85 (196 S.E. 758); Brown v. Newsome, 192 Ga. 43 (14 S.E. 2d, 470).

Judgment affirmed. All the Justices concur.