Madison v. Montgomery

1. A judgment fixing the custody of a minor child is conclusive between the parties, and the principle of res judicata is applicable, unless a material change in circumstances substantially affecting the welfare of the child is made to appear. In determining whether or not there has been such a change, the trial judge is vested with a discretion which will not be controlled by this court unless it is abused. Under the facts of the present case no abuse of discretion is shown.

2. When the trial judge is by law made the trior of an issue of fact, this court will not interfere with his finding when there is any evidence to support it. City of McRae v. Folsom, 191 Ga. 272, 276 (11 S.E.2d 900).

3. The right to present argument is a valuable and substantial one, which all litigants have in the trial of cases, and one which should never be denied; but it is a right which may be waived expressly or by conduct. In the present case it was waived by conduct.

No. 16785. OCTOBER 11, 1949. REHEARING DENIED NOVEMBER 18, 1949. Mrs. Lois Madison filed contempt proceedings in the Superior Court of Hall County against her former husband, Marvin Louis Montgomery Sr. It appears from the record that the marriage between these parties was dissolved by divorce on January 15, 1945, and by the terms of the final decree Montgomery was required to pay his divorced wife $40 per month as permanent alimony, beginning February 1, 1945, and on the first day of each succeeding month until the majority of their minor child, who was then about two years old, half of which amount was for the support and maintenance of the divorced wife, and the other half for the child. The decree did not specifically provide for the future custody and control of the child. Montgomery was in the Army when the divorce suit was filed by his wife, when the decree was granted, and when his divorced wife married Douglas R. Madison on March 15, 1945. After Montgomery's discharge from military service, the child in question remained in the custody and control of his mother, and Montgomery continued to make the monthly payments of $40, notwithstanding her remarriage. No attack is made upon the decree granting the divorce and inferentially the parties have treated it as one awarding custody and control of the child in question to his mother.

The present proceeding was filed February 9, 1949, and the petition alleges that the defendant wilfully refused to comply with the terms of the decree by paying the instalments of $40, each due on January 1 and February 1, 1949. It was also further alleged that the defendant, in violation of the decree, went to a school in Gainesville, Georgia, where their child was a pupil, and without the knowledge and consent of the plaintiff, "surreptitiously obtained the custody of said child and spirited it away to Fulton County, Georgia, where he is now illegally detaining the same and withholding the same from the lawful custody of petitioner." The prayers were for a rule nisi and service; that the defendant be adjudged in contempt for violating the terms of the decree of January 15, 1945; that the Sheriff of Hall County be directed to take immediate possession of the child in question and hold him in custody until further ordered; and for general relief. In a response to the petition, the defendant denied that he had violated any of the terms of the decree, either by failing to pay any of the instalments due for alimony, or by unlawfully interfering with the plaintiff's custody of their child. By cross-action the defendant alleged, in substance: that he had filed a proceeding in Hall County Superior Court during October, 1948, for the purpose of obtaining custody of his child, alleging therein that the mother of their child, the plaintiff in this proceeding, was living in adultery with Don Mullins, and for that reason she was no longer a fit and proper person to have custody and control of their child; that the allegations of that petition were denied and a plea to the jurisdiction was filed, alleging that the defendant therein was a resident of a different county in this State; and that he voluntarily dismissed that proceeding after the defendant signed a written promise to discontinue her association with the party named and to properly care for their child and keep him under a proper environment. It is further alleged that, about two weeks after the agreement was signed, his former wife renewed her illicit and adulterous relations with Mullins; and that such relation continued between them until this defendant went to Hall County and by permission of his former wife took possession of his child, which possession he retained until the child was taken from him by the sheriff of that county. He prayed that he be not adjudged in contempt because of any alleged violation of the decree, and that the decree be so modified as to give him custody and control of the child, the best interest of the child requiring it. The evidence found in this record is voluminous, and we do not think that it is at all necessary to set it out in this statement of the facts, or later in the opinion; for the sake of an innocent child we had rather not. It is recited in the bill of exceptions: "At the conclusion of the evidence in said case, counsel for plaintiff insisted upon the right to argue said case, and said judge, then and there presiding, stated there was no necessity for argument and refused to hear or permit arguments in said case, to which said ruling the plaintiff then and there excepted and now excepts and assigns said ruling as error, as being contrary to law, and says that said judge then and there should have permitted counsel for plaintiff to argue said case, and should not have denied counsel for the plaintiff the right to argue the same before entering any order in said case." The trial judge declined to certify as true these recited facts but, concerning the occurrence complained of, did certify as true the following: "This hearing was conducted informally in chambers and lasted from 10:30 a. m. until 7 p. m., and immediately following the close of the evidence, no request was made to argue the case, and the court commended the grandfather of the child in question for several minutes, and then asked the question of plaintiff's counsel why they had not produced Don Mullins as a witness, to which they answered that they would like to argue the case and thought that they could have him present before arguments were completed. The court then stated that he did not think it necessary to have arguments, since he had paid particular attention to all of the testimony in the case and that it would not be helpful to the court for arguments. However, in spite of this, counsel for plaintiff informally discussed the matter for 5 or 10 minutes until counsel for the defendant stated that, if arguments were to be made, they desired to be heard also. No objections were made by either side at this point, and the court then rendered judgment as specified in the bill of exceptions. At no time during the informal discussion did the court form an opinion that plaintiff's counsel desired to argue the case for the sake of argument, but only for the purpose of delaying the matter until the witness, Don Mullins, could be produced. It was not until the date set for the approval of the bill of exceptions, did the court become aware that the plaintiff was insisting upon argument of the case, and when this fact appeared, the court offered to vacate the judgment and permit arguments from both sides, to which the plaintiff's counsel refused."

There is also an exception to the judgment refusing to hold the defendant in contempt, and awarding custody and control of the child in question to the defendant, giving the mother the right to visit the child at the home of the defendant only, at reasonable times. 1. Since no contention is made to the contrary, we will deal with the instant case upon the assumption that the effect of the decree rendered in the divorce and alimony case between these parties was to award custody and control of the child presently involved to his mother. In cases of this character there is always one person not at fault, namely, the unfortunate child. Therefore our first consideration of the case will relate to the disposition which the trial judge made of him. The mother earnestly insists that a court of competent jurisdiction has previously decreed that she should have custody and control of the child, and that the trial judge has, under the facts of the case, abused his discretion in making a different award. More than four years have passed since the original judgment was rendered, and the father contends that the circumstances surrounding his son have materially changed. In other words, he claims that the mother by her personal misconduct has broken faith with the court as parens patriae of the child and forfeited her right of custody and control. It is well settled by numerous decisions of this court that a judgment like the one heretofore rendered respecting this child is conclusive between the parties, and the principle of res judicata is applicable, unless a material change of circumstances substantially affecting the welfare and best interest of the child is made to appear. Handley v. Handley, 204 Ga. 57 (48 S.E.2d 827). But the conclusiveness of such a judgment, as this court has so frequently held, relates to the status of the parties as it existed when the judgment was rendered. Williams v. Crosby, 118 Ga. 296 (45 S.E. 282); Lockhart v.Lockhart, 173 Ga. 846 (162 S.E. 129); Handley v.Handley, supra. This court has also consistently said that altered circumstances may render a change in custody necessary in order to promote the health, happiness, or welfare of the child (Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, L.R.A. 1916B, 977); and in determining whether or not there has been such a change, the trial judge is vested with a discretion which will not be controlled by this court unless it is abused. Good v. Good, 205 Ga. 112 (52 S.E.2d 610). After carefully and sympathetically examining the evidence in this case, we have reached the very definite conclusion that the trial judge was fully authorized to find therefrom that the circumstances surrounding the child here involved required a change in custody; and since the evidence shows that the father is a person of exceptionally fine character, there was no abuse of the discretion which the law has so wisely reposed in the trial judge in awarding custody to him. In fact, we think, and so hold, that the evidence, when considered as a whole, with all reasonable inferences or deductions which may be drawn therefrom, demanded such a finding.

2. We deal next with the contempt feature of the case. It is alleged in the petition that the defendant wilfully and deliberately violated the decree of January 15, 1945, by interfering with the plaintiff's lawful possession and control of their child, and by failing and refusing to pay the alimony instalments of $40 each, which had been past due since January 1 and February 1, 1949. It is, of course, unnecessary to cite authority for the proposition that a wilful failure or refusal to comply with the orders, judgments, or decrees of a court constitutes contempt, for which the offender may be punished. Respecting the plaintiff's contention that the defendant had wilfully interfered with her custody of the child in question, the evidence was in sharp conflict. She testified positively that the defendant had taken the child away without her consent, and he testified just as positively that it was done with her full knowledge and consent. The trial judge was the trior of that issue. He passed upon their respective credibility as witnesses; it was his province to do so. He saw them, heard them testify, observed their conduct and demeanor during the trial, and very likely knew them. As to this, he saw fit to believe the defendant's testimony, rather than that of the plaintiff, and we have no right or desire to control his findings. Smith v. Tindol, 179 Ga. 801 (177 S.E. 588). Concerning the allegation that the defendant had not paid certain past-due alimony instalments, the judge also declined to find the defendant guilty of contempt, and what we have said immediately above with reference to his province in passing upon an issue of fact, applies with equal force to this. The defendant, as the record shows, testified that he had paid all alimony due by him up to the present time, and on the basis of $40 per month he had as a matter of fact overpaid the instalments by "about" $25. The plaintiff, on cross-examination, said: "I testified that Louis [the defendant] was one month behind with his alimony payments at the time the papers were filed. I had testified in the former trial that my alimony had been paid up in full, but I don't know; that is true except for the times he didn't pay it, and what he thought was a reasonable excuse for not paying it for several years. He has been paying me as alimony $40 a month. Except for some arrearage which I am not sure of for several years, my alimony has been paid up with the exception of one month. All of the monthly payments have been at the rate of $40 a month for each and every month. I married Mr. Madison on March 15, 1945. Louis has continued to pay me $40 a month from March 15, 1945, up to the present time with the exception of one month." Accordingly, since the evidence was unquestionably sufficient to authorize the findings made upon these issues of fact, there is no merit in the contention that the judge erred in refusing to adjudge the defendant in contempt. And under any view which may be taken of the evidence respecting the plaintiff's contention that the defendant had wilfully refused to comply with the terms of the decree by not paying the amounts due thereunder, it affirmatively appears that the defendant, except for one month, has paid the plaintiff $40 monthly, and for each and every month, since her remarriage to her present husband on March 15, 1945. If we are to follow — and the writer speaking for himself thinks we should — the majority opinion in White v. Murden, 190 Ga. 536 (9 S.E.2d 745), where this court by a divided bench held that an allowance for alimony for the use and benefit of a divorced wife, payable in monthly instalments, ceases to be an obligation of the former husband upon her remarriage, it would necessarily follow in this case that the amounts previously paid by the defendant are far in excess of what he was required to pay under the law in satisfaction of the decree as of the date this proceeding was filed.

3. In the circumstances of this case, there is no merit in the contention that the judgment complained of should be reversed because the plaintiff's counsel were denied the right to present arguments to the court. We, of course, recognize the right of argument to be a valuable and substantial one which all litigants have in the trial of cases. Mr. Justice Bleckley, who delivered the opinion for this court in VanDyke v. Martin, 55 Ga. 467, has so clearly expressed our view of the tremendous value of this right that we cite the case here, not only as authority for what we have just said, but with a hope that all of the judges of this State will read it again and follow it as a sound rule of procedure and practice in the trial of all cases. But the right of argument, like other rights, even the right of trial itself (Sarah v. State, 28 Ga. 576), may be waived; and in the present case the facts concerning the occurrence about which complaint is made, as shown by the judge's certificate which is not to be questioned in a court of review (Spear v. State,17 Ga. App. 540 (1), 87 S.E. 826), in our opinion, show that the plaintiff's counsel by conduct waived the right to present argument when the trial judge offered to vacate the judgment now complained of and hear arguments from both sides. In his offer to correct an error, if one had in fact been committed, we will not impute to the trial judge any motive other than one to give the parties an opportunity to present arguments, if they desired to do so, before final judgment was pronounced in the case.

For no reason assigned in the present case is the judgment complained of erroneous.

Judgment affirmed. All the Justices concur.