Padgett v. Penland , 230 Ga. 824 ( 1973 )

Gunter, Justice,

dissenting in Case No. 27906. I have consistently taken the position that a party who steals a child or withholds possession of a child in violation of a decree of another court cannot, by either of these acts, establish jurisdiction in a court of his choice for a change of custody proceeding based on changed conditions since the rendition of the earlier custody decree. See my dissenting opinions in Glover v. Sink , 230 Ga. 81 (195 SE2d 443) (1973), and Smith v. Smith, 229 Ga. 580 (193 SE2d 599) (1972).

The allegations of the complaint in the instant case (No. 27906) show clearly that the mother-appellee retained possession of the child in Lincoln County, Georgia, in violation of an earlier custody decree; and earlier litigation in this court showed that she had been held in wilful contempt of that court for violating that court’s custody decree. See Padgett v. Padgett , 229 Ga. 623 (193 SE2d 815) (1972). This is also apparent from the present appeal in No. 27909.

It is therefore my position that the Superior Court of Lincoln County, Georgia, did not have jurisdiction of the subject matter in No. 27906; the appellant’s motion to dismiss that case should have been granted; and the judgment in that case should now be reversed by this court.

Under the law of this state, so far as I can determine, there are only two methods of bringing an action to obtain custody of a child or to obtain a change of custody of a child. One method is in a divorce or separate maintenance action pursuant to Code §§ 30-127, 30-206, and 30-213. The present case clearly did not use this method. The other method is by the writ of habeas corpus pursuant to Code § 74-106. This latter statute provides that "in cases of separation of parents, . . . the court, upon writ of habeas corpus, may exercise a discretion as to the possession of the child, looking solely to his interest and welfare.” The complaint in this case filed in Lincoln Superior Court was certainly not even in the nature of habeas corpus, because the complainant herself had possession of the child. One cannot bring an action in the nature of habeas corpus against himself.

As I understand the law of this state a divorce court has jurisdiction and discretion to grant custody and change custody pending divorce, and a habeas corpus court has jurisdiction and discretion to change custody of a child looking solely to the interest and welfare of the child pursuant to Code § 74-106, Code Ann. § 74-107, and Code § 50-121. Other than in these two specific instances a judge of superior court in this state does not have power and discretion to award or change custody.

The complaint filed in Lincoln Superior Court against a nonresident of the State of Georgia showed on its face that the complainant had possession of the child in Lincoln County, Georgia, in violation of a custody decree of another court; the trial court therefore did not have jurisdiction to determine custody based on a change of condition; the filed complaint was not a divorce or separate maintenance action or a habeas corpus action; the trial judge therefore did not have jurisdiction or discretion to grant a change of custody; and the filed complaint was, to my mind, merely an abortive effort on the part of the complainant to choose a friendly forum in which to relitigate custody that had already been determined by court decree and by a recent contempt citation and judgment in another forum.

I would reverse the judgment in Case No. 27906.

I respectfully dissent.