Girtman v. Girtman

1. A writ of error will not be dismissed on the ground that it was sued out prematurely, when the bill of exceptions assigns error on the refusal of the trial court to dismiss the action on demurrer, since had the demurrer been sustained it would have been a final determination.

2. There is no provision of law which allows a third party to intervene in a suit for divorce.

3. The right of a surviving parent to the custody of a child can not be divested by provisions in the will of the deceased parent.

4. A judge of the superior court sitting in his circuit has no authority to grant a writ of habeas corpus, unless the illegal detention exists in a county of that circuit.

5. On the death of the parent who holds custody of a child under a decree, the right to the custody automatically inures to the surviving parent.

6. A petition for habeas corpus, filed by a child's paternal grandmother against his mother, his surviving parent, not alleging that the mother is an unfit person to have the custody, should be dismissed on general demurrer.

7. The judge erred in refusing to dismiss the action.

No. 13541. NOVEMBER 15, 1940. On November 13, 1931, in DeKalb superior court, Mrs. Frances Girtman filed suit for divorce against H. L. Girtman. On June 9, 1933, two concurring verdicts favoring a divorce having been rendered, a decree was entered, adjudging that a total divorce be granted the plaintiff, with the right given both parties to marry again. The decree contained the following provision with reference to the only child of the parties: "Further ordered, that the custody of the minor child, Harry L. Girtman Jr., is retained in the court; the award herein made being subject to change at a later date in the court's discretion. Jurisdiction of said case is hereby retained for this purpose. Subject to the foregoing, it is ordered that until the child reaches the age of five (5) years its custody shall be divided equally between the plaintiff and the defendant, each party having the custody of the child every alternate month; that is, the plaintiff is to have the custody of the child for one month and the defendant the following month; and this arrangement to continue until the child attains the age of five (5) years and is ready to enter kindergarten, and from then on until further order of the court the defendant is to have the custody of the child during the entire school period of each year, and the plaintiff is to have the custody of the child during the vacation period of each year, and during each of said periods the parents shall have the privilege of having said child during the week-ends that the other parent has control. The defendant is to be responsible for the support, maintenance and education of said child, and during the periods when said child is with its mother, the plaintiff, the defendant is to pay to her the sum of twenty-five ($25.00) dollars per month, which is to be for the use of said child. During the periods when said child is with either of the parents, the other party shall have the right to have the child visit him or her under such arrangements as may be mutually agreed upon, and should the parents fail to reach an agreement then the court shall give direction in the premises. Said minor child, Harry L. Girtman Jr., shall not be taken beyond the jurisdiction of this court without the consent of the court."

On August 30, 1940, Mrs. Minnie I. Girtman filed in the office of the clerk of DeKalb superior court a proceeding in writing. After entitling it "Mrs. Frances Girtman v. H. L. Girtman, Motion No. 1923, No. 6159, DeKalb Superior Court," she alleged, that the above-stated case was a suit for divorce and alimony, in which a final verdict and decree had been rendered; that said suit involved, among other things, the question of the custody of the minor child of the parties, Harry L. Girtman Jr., and recited the provisions made in the final decree regarding the custody, and the one wherein it was stated that the custody was retained by the court; that H. L. Girtman, the father, died on March 4, 1940; that petitioner is the paternal grandmother of the child; that during the periods when the child was in the custody of his father he was in petitioner's home, where the child's father lived, and she cared for and ministered to the child; that the boy's mother did not exercise the privilege of custody of the child during the periods when she was by the decree of the court entitled to such privilege, and for approximately three months before the death of the child's father the mother had not seen her child; that the boy's father left a will designating petitioner as the testamentary guardian of his child, the will being duly probated; that in view of the desire of the father to have the custody of his child placed in petitioner in the event of his death, and in view of the provisions of his will, and the fact that petitioner has for a long time cared for and looked after said child with as much devotion and attention as if it were her own, and in view of the fact that the child is very much devoted to petitioner, she brings her petition asking the court to award the permanent custody of the child to her, with the right on the part of his mother to visit him and have him with her at such times as may be reasonable; that provision was made in the will of the child's father for his maintenance and support, and petitioner is physically and financially able to provide the child with a home in which he will be properly reared and educated; that the environment in which the child would be reared if placed in petitioner's custody would be more conducive to his welfare than the environment in which he now is being kept by his mother, who has him in her possession; and that Mrs. Frances Girtman, the mother, resides in Fulton County. It was prayed, that a second original of the petition issue for service; that rule nisi issue, requiring Mrs. Frances Girtman to show cause why the custody of said child should not be awarded to the petitioner; and that on a hearing the court award the custody of the child to the petitioner under such conditions as may be proper. The judge issued a rule nisi, ordering Mrs. Frances Girtman to show cause before him why the prayers of the petition should not be granted, and ordering that second original for service be issued.

Mrs. Frances Girtman filed a "plea to the jurisdiction," entitling it "Mrs. Frances Girtman v. H. L. Girtman, Motion No. 1923. No. 6159 DeKalb Superior Court," and setting up that DeKalb superior court had no jurisdiction of the custody of the child or of the respondent, but that Fulton superior court was the only court that had jurisdiction, both the respondent and the child now being residents of Fulton County. It was prayed that the plea to the jurisdiction be sustained, and the motion of Mrs. Minnie I. Girtman be dismissed.

Mrs. Frances Girtman moved also (subject to her plea to the jurisdiction) to dismiss the action, for the following reasons:

"1. It affirmatively appears from said motion that the movant, Mrs. Minnie I. Girtman, has no interest in said subject-matter.

"2. It affirmatively appears from said motion that the father of the child referred to in said motion is dead; and therefore, under the law, the plaintiff herein, the mother of said child, is the natural and legal guardian of said minor child; and that the mother-in-law, Mrs. Minnie I. Girtman, has no right to intervene in this case by motion or otherwise, the plaintiff being the legal and natural guardian of said child.

"3. Because the court has no authority under the law to award the minor child, plaintiff's son, to the movant in this case.

"4. Because it affirmatively appears in paragraph seven that H. L. Girtman, the father of the child, undertook to make a will in which he `designated the movant in this case as the testamentary guardian of said child.' The father of said child had no authority under the law to will the custody of said minor, or to take away the custody of said child from plaintiff, its mother.

"5. Because the said motion fails to show any change of conditions affecting the welfare of the child.

"6. Because said final decree is conclusive between the said parties as to the right of the mother to the custody of the child on week-ends, and during the summer months; and inasmuch as said motion shows the father is dead, then the entire legal custody thereby becomes vested in the mother, who is the natural legal guardian.

"7. Because said motion fails to allege that the mother of the child, your plaintiff herein, was in any way unable or unsuited to retain custody of the child, or that the conditions and circumstances of the child were in any way changed; and, failing to allege and show how the said conditions and circumstances are changed to the detriment of said child, therefore said petition should be dismissed. Said movant in this case, Mrs. Minnie I. Girtman, is not a party to the case, and alleges no facts to show her rights in this case; on which grounds said motion should be dismissed.

"8. Because the judgment or decree of divorce in this case, giving partial custody and control of the child to the husband, does not empower him to appoint a testamentary guardian for his child in the event of his death.

"9. Because the rule of law in this and all other jurisdictions of this country is that upon the death of a parent who has held either partial or total custody of a minor child under a divorce decree the right to the custody of the said minor child or children automatically inures to the surviving parent.

"10. Because under the law the plaintiff herein, the mother of said child, becomes vested with the legal right and custody of said child upon the death of the father.

"11. Because under the law the mother-in-law has no right to take the custody of this child solely because the child is devoted to her.

"12. Because the law never takes the custody of a child away from a parent because there are others who might give the child opportunities and more luxuries than the natural and legal parent.

"13. Because the movant has no legal authority to maintain a motion of this kind in this court.

"14. Because the plaintiff is a resident of Fulton County and is not subject to the jurisdiction of this court."

On September 6, 1940, the judge overruled the plea to the jurisdiction and the motion to dismiss, and entered the following order: "After hearing the argument in the above-stated case, it is ordered and adjudged by the court that the original decree entered on the 9th day of June, 1933, be preserved as entered, and the defendant, Mrs. Frances Girtman, is hereby ordered to deliver said child, Harry L. Girtman Jr., to its grandmother, Mrs. Minnie I. Girtman, at once. A further hearing on the above-stated case is set for 9:00 o'clock a. m. Tuesday, September 24, 1940." Error was assigned on these rulings. The judge certified that no evidence was introduced, but that it was admitted that H. L. Girtman, the defendant in the divorce suit, died on March 4, 1940. The defendant in error filed in this court a motion to dismiss the writ of error, on the ground that it was sued out prematurely, since the order of the judge last referred to showed that he was not making a permanent award of the custody of the child, but merely a direction that the child be turned over to one of the parties pending a further hearing. 1. Had the motion of plaintiff in error to dismiss the proceeding been sustained, it would have been a final determination of the cause. Since in the bill of exceptions error is assigned on the ruling denying that motion, the writ of error can not be dismissed on the ground that it was prematurely sued out; and this is true regardless of whether the additional order providing for the custody of the child be treated as merely a direction that it be delivered to one of the parties pending a further hearing. Code, § 6-701.

2. Looked at from any one of several standpoints, the defendant in error is not entitled to prevail. Treating her proceeding, as she herself treated it, as one filed in a suit for divorce once pending between her son and his wife, it must fail, because she was not a party to that suit. She did not ask to be made a party, even had it been proper to allow such request. Ordinarily a mother-in-law has no right to participate as a party in a suit for divorce between her son and daughter-in-law. But the suit had ended. At the time of the filing of her petition no such suit was pending. Not only that, but the sole defendant in that suit had died. These considerations present compelling reasons why she was not entitled in this manner to obtain possession of the child. But it is said that this court ruled, inCurtright v. Curtright, 187 Ga. 122 (2) (200 S.E. 711), that the particular court in which the divorce was rendered had jurisdiction to entertain an attachment for contempt for failure to pay alimony, regardless of the residence of the party, thus recognizing that a divorce court retains jurisdiction even of the final decree, to give effect to its provisions; and seeking to apply this ruling to the case at bar, counsel for defendant in error takes the position that since in the instant case the decree contained a statement to the effect that the court retained jurisdiction of the custody of the minor, that court had a right to make further disposition of the child. The two cases are by no means analogous. The only court that could punish one for contempt for failure to obey its order was the court that issued it. One of the many differences in the two cases is that the law of contempt is not concerned with the residence of the person in contempt.

It is contemplated by our Code, § 30-127, that the judge, after the rendition of the two verdicts granting a divorce, shall in his decree award the custody of the child or children. This has been done in the decree before us, and is conclusive unless a change of circumstances be shown, arising subsequently to the date of the decree. Sells v. Sells, 172 Ga. 911 (159 S.E. 237); Shields v. Bodenhamer, 180 Ga. 122 (178 S.E. 294). Whether or not, ordinarily, a provision in a divorce decree that the court retains jurisdiction of the custody of any minor child of the marriage could serve to give the divorce court at a later term the power to change, as between the parties to the divorce suit, the disposition originally made of the child, is a matter we do not decide. Compare, however, Oetter v. Oetter,150 Ga. 118 (2) (102 S.E. 818); Scott v. Scott, 154 Ga. 659 (115 S.E. 2); Sells v. Sells, supra; Crowell v. Crowell,190 Ga. 501 (9 S.E.2d 628). Two things are apparent: (1) the reservation of jurisdiction could not have been effective as to any party not then before the court, and (2) that reservation finally came to an end when H. L. Girtman died. Never after that date could there be any issue between Mrs. Frances Girtman and H. L. Girtman for the court to adjust. All other considerations aside, the alleged right which it is now attempted to assert, being non-existent at the time of the decree, could not possibly have been within the contemplation of the judge when making the reservation of jurisdiction. Accordingly, in no view of the case could that reservation inure to the benefit of Mrs. Minnie I. Girtman.

3. We are met with another contention, and it is that the petition of the defendant in error states that under the will of Harry L. Girtman she is named as testamentary guardian of the child, and therefore is entitled to the custody. A father in his will has the power to provide that property which he bequeaths and devises to a minor son shall be held by one whom he names therein as the child's testamentary guardian, but we know of no provision of law by which a father can by will appoint a guardian for the person of his son, and in such manner take the custody from the mother. In 74 A.L.R. 1348, 1356 (in a note to Leclercv. Leclerc, 85 N.H. 121, 155 A. 249), it is stated that in the absence of a statute otherwise providing, it is the rule that the right of a surviving parent to the custody of a child can not be divested by provisions of the will of the deceased parent. Among the authorities cited in support of this statement is Taylor v. Jeter,33 Ga. 195 (81 Am. D. 202). In that case it was squarely ruled that a judgment or decree divorcing husband and wife a vinculo matrimonii, and giving the custody and education of a child of the marriage to the wife, does not empower her to appoint a testamentary guardian for that child, the father surviving.

4. Let the position be viewed from another angle. There is no magic in mere nomenclature, even in describing a pleading. Let us concede for the sake of the argument that her motion or petition, although evidently intended by the pleader to be in the nature of an intervention in a suit of the character above described, as a matter of fact contains every essential element of a petition for habeas corpus, brought by Mrs. Minnie I. Girtman against Mrs. Frances Girtman, for the custody of a child; and if it be so considered, still it can not prevail, because it affirmatively appears that at the time Mrs. Minnie Girtman filed her petition the child was in the possession of the mother, and that she was a resident of Fulton County, not DeKalb, where the petition was brought. This is the basis of one of the grounds of the motion to dismiss it. DeKalb County is in the Stone Mountain Circuit; Fulton in the Atlanta Circuit. The judge of the superior court of DeKalb County would have no authority to grant a writ of habeas corpus, because a petition therefor has to be presented to the judge of the superior court of the circuit where the illegal detention exists. Code, § 50-103. Nor is this all.

5, 6, 7. Treating the petition as in substance a petition for habeas corpus, and forgetting for the moment the lack of jurisdiction of the person, the petition showed no reason sufficient in law to take the child away from his mother, the surviving parent. It was not alleged that the mother was an unfit person to retain the custody. It is true that the petition states that "the environment in which said child will be reared, if placed in the custody of petitioner, will be more conducive to its welfare than the environment in which it is now being kept by its mother, who now has said child in her possession, and petitioner feels that it is for the best interest of said child that its custody be awarded to her;" but this is a mere conclusion, without a single fact alleged in support thereof. We can well understand the devotion of a grandparent for a grandchild. We have witnessed and felt the warmth of that devotion. Having had the sole custody for some time, it is but natural for her to feel that the child should be restored to her. Far be it from any member of this court to undervalue the tender ministrations of a grandmother. Sweet memories of such will linger so long as life itself shall last, even after the vase is broken and shattered. But her loving care was never meant to take the place of a mother's. As was said by Mr. Justice Lumpkin, inSloan v. Jones, 130 Ga. 836, 855 (62 S.E. 21), "God gave the child to his parents, not to his grandparents." Our law places the primary responsibility of nurturing, rearing, and training a fatherless orphan, as well as the joy and privilege of so doing, on the mother; and this is in harmony with nature's instinct and with nature's law. If the petition be construed as asserting that the worldly goods of the grandmother are greater than those of the mother, such a situation affords no sufficient ground for awarding the custody to the grandmother. Sloan v.Jones, supra. "While the judge upon a hearing of a writ of habeas corpus for the detention of a child is vested with a discretion in determining to whom its custody shall be given, such discretion should be governed by the rules of law, and be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child justify the judge in awarding its custody to another." Sloan v.Jones, supra, citing Miller v. Wallace, 76 Ga. 479 (2 Am. St. R. 48); Monk v. McDaniel, 116 Ga. 108 (42 S.E. 360).

"Upon the death of the father, the mother is entitled to the possession of the child until his arrival at such age that his education requires the guardian to take possession of him. In cases of separations of the parents, or of the death of one and the subsequent marriage of the survivor, 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." Code, § 74-106. This fixes the mother's right to the custody of the child on the death of the father. Landrum v. Landrum, 159 Ga. 324,328 (125 S.E. 832, 38 A.L.R. 217). Nothing in the divorce decree can upset this: (1) Because the rule is that upon the death of the parent who has held custody under a divorce decree, the right to custody automatically inures to the surviving parent. See authorities to that effect in 74 A.L.R. 1353, supra. (2) Because of another rule, that upon the death of one of the parties divorced by judicial decree, the divorce proceeding fails so far as concerns any further right to the custody of children. See same note, 74 A.L.R. 1357, and cit. There are some decisions to the contrary of the rule last announced, but the weight of authority supports it. For the reasons outlined above, we are of the opinion that the court erred in not dismissing the petition on demurrer. This ruling, since it is controlling, makes it unnecessary to rule specifically on the other exceptions.

Judgment reversed. All the Justices concur.