76 S.E.2d 387
18209.Supreme Court of Georgia.SUBMITTED MAY 11, 1953.
DECIDED JUNE 9, 1953.
The evidence did not show any change in circumstances materially affecting the welfare of the child since the rendition of the decree granting custody to the mother, and the father did not show any valid excuse for his failure to pay the alimony for the child provided by the decree. It was, therefore, error to hold that the father was not in contempt of court for failure to pay alimony, and to change the custody of the child to the father.
No. 18209. SUBMITTED MAY 11, 1953 — DECIDED JUNE 9, 1953.
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Alimony, etc. Before Judge Anderson. Richmond Superior Court. March 10, 1953.
In the present case a decree of divorce between the parties was entered on July 21, 1952. Under the decree, custody of the minor child was awarded to the mother, and the father was required to pay $50 per month for the support of the child. It was provided that the father should “have the right of visitation with said child and have it visit him when convenient to all parties, provided he does not associate the child with parties objectionable to the said Mildred A. Fennell [the mother].”
On December 4, 1952, the mother filed a pleading in which she alleged that the father had refused to comply with the court’s order as to the support of the child, and she prayed that he be cited for contempt. Rule was issued, and was heard on December 9, 1952.
At the conclusion of the hearing, the judge took the matter under advisement. On February 28, 1953, the father filed a written response. In the delayed response of the father (filed more than two months after the hearing), it was alleged that his reason for non-compliance with the court’s order awarding $50 per month for the support of the child, was that “the petitioner violated the terms of the decree in that she without cause sent the child in question out of the jurisdiction of the court, having removed it to the State of Alabama . . where it is living with the parents of the petitioner in a garage apartment and in unwholesome surroundings.” He further alleged that “the present abiding place of said child is not for the welfare of said child and is not a fit and proper place for it to be reared, which is a material change in conditions that has occurred since the decree was entered.”
In line with his response, the father had testified: that he had not complied with the decree because the mother “without cause” had violated the terms of the decree by having sent the child to the home of her parents in Alabama. Her parents are living in a garage apartment in unwholesome surroundings. The child’s grandfather is frequently drunk, and on many occasions, at the request of the child’s mother he has pulled the grandfather “out of dives in a drunken condition in Augusta, Georgia.”
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Mrs. Fennell, the mother of the child, testified: During the entire time of her marriage to the defendant, except for a short time when she was expecting the birth of the child, she had been steadily employed. It was customary, after the birth of the child, to leave it in the care of a nurse during the day, or in a nursery. At the time of the divorce she was steadily employed, and the child was being cared for at all times by a nurse. The condition of her employment has not changed from the time of the decree until the present time. Her former husband has remarried and he and his present wife are both employed, and the child would have to be cared for by a servant at all times. The former decree specifically provided that the father of the child should “not associate said child with parties objectionable to the said Mildred A. Fennell.” This provision of the decree was there by agreement and consent of the parties because she objected to the child being associated with Louise Berry, now Louise Berry Fennell. She has not given custody of the child to her parents, and the child is only visiting her parents temporarily, with arrangements made for the child to be returned to Augusta on frequent occasions for the purpose of seeing its parents. Her parents live in a modern, two-bedroom home, with a large yard, and all modern conveniences. The child attends Sunday school and church every Sunday morning, and her father is a prominent member of the Baptist Church in Anniston, Alabama. She is willing to return the child to her residence in North Augusta, South Carolina, where it will at all times be available for visitation by its father, but the cost of employing a servant to take care of the child will be much greater than the $50 per month to be paid by the father.
The judge entered an order finding that the husband was not in contempt of court for failure to pay the amount fixed for the support of the child, and awarding custody of the child to the father. The exception is to this judgment.
Peebles Burnside and Samuel E. Tyson, for plaintiff in error.
Killebrew McGahee, contra.
HEAD, Justice.
A judgment awarding custody of minor children of the parties in a divorce action is conclusive on the facts as they then exist; and unless there is a change in circumstances
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substantially affecting the welfare of the minor children since the date of the former decree, the court can not modify or change the decree so as to change the status as to custody. Williams
v. Crosby, 118 Ga. 296 (45 S.E. 282); Barlow v. Barlow, 141 Ga. 535 (81 S.E. 433); Milner v. Gatlin, 143 Ga. 816
(85 S.E. 1045); Gillens v. Gillens, 148 Ga. 631
(97 S.E. 669); Lockhart v. Lockhart, 173 Ga. 846 (162 S.E. 129) Jordan v. Jordan, 195 Ga. 771 (25 S.E.2d 500); Fortson
v. Fortson, 200 Ga. 116 (35 S.E.2d 896); Handley v Handley, 204 Ga. 57 (48 S.E.2d 827).
Two facts appear from the evidence, since the award of custody in the divorce case, that might be asserted by the father of the child as amounting to a change in circumstances materially affecting the welfare of the child. The first of these is his marriage to a woman with two children in her custody. This court has held that remarriage alone of one of the parties is not such a change of circumstances affecting the welfare of the child as will justify a change in custody. Watson v. Padgett, 202 Ga. 606 (44 S.E.2d 232).
The other fact revealed by the evidence, temporary residence by the child with its mother’s parents in Alabama, could not possibly excuse the father in his deliberate refusal to support the child. The decree in the divorce case did not limit the mother’s custody in any particular, but if it might be assumed that she was in any respect derelict in her duty toward the child, such fact would not authorize a decree by the court wherein in the father might, in effect, dictate the terms under which he would comply with the requirement of the law that he support his child.
There was no testimony to show any change in the mother’s status since the decree awarding her custody of the child. The husband’s testimony that, at the request of the child’s mother, he had pulled the grandfather “out of dives in a drunken condition in Augusta, Georgia,” obviously purports to relate to a time when the parties were living together as husband and wife, and this testimony, if credible, related to matters prior to the decree. The husband testified that the home of the mother’s parents in Alabama was one of “unwholesome surroundings.” He did not testify that he had visited their home, or to any fact
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tending to show any unfitness or misconduct of the grandfather since custody was awarded to the mother. There was no evidence in contradiction of the mother’s testimony that her father was an active member of the Baptist Church, and that the child attended Sunday school and church services regularly.
Where there are conflicts in the testimony on essential facts, the trial judge may exercise a sound discretion in fixing the custody of minor children. Atkinson v. Atkinson, 160 Ga. 480
(128 S.E. 765); Willingham v. Willingham, 192 Ga. 405
(15 S.E.2d 514); Madison v. Montgomery, 206 Ga. 199
(56 S.E.2d 292). The record in this case is without any competent evidence to sustain the judgment finding that the father was not in contempt for failure to pay the amounts fixed by the divorce and alimony decree for the support of his child, or that there had been such change of circumstances materially affecting the welfare of the child that custody should be awarded to the father.
The authority of the Man of Galilee to say to one charged with violating the moral law, “Go, and sin no more” (John 8:11), has not been successfully challenged by His enemies in 1900 years. Our law does not vest a similar discretion or authority in our trial judges. In all instances where the trial judge may exercise a discretion, it must be based on competent evidence.
The evidence in this case did not call for an exercise of discretion, but demanded a judgment contrary to that rendered.
Judgment reversed. All the justices concur, except Duckworth, C. J., who dissents, and Atkinson, P. J., not participating.