1. While the judgment fixing custody of children where a divorce is granted is conclusive between the parties and the principle of res judicata is applicable, where a petition is brought in the nature of habeas corpus, alleging material changes of circumstances substantially affecting the interest and welfare of the children, such proceeding is an independent one and is not an effort to modify the original decree.

2. The rule is well established that, where an amendment should not be allowed and would be stricken on proper objection, if it be permitted without objection, then the petition as amended must be considered as to whether it contains a cause of action.

3. In questions of custody, the judge has a wide latitude and discretion, so that he may justiciably determine what is in the children's best interest, welfare, and happiness.

4. In a case of constructive contempt of court, where the alleged contumacious conduct is disobedience to a mandate of the court, the law requires that a rule nisi issue and be served upon the accused, giving him notice of the charges against him, and that he be given an opportunity to be heard.

5. Where the mother of minor children seeks to gain their custody by showing a change of condition affecting the children's welfare, and there are no pleadings or prayers for relief in respect to alimony or support for the children, and it does not appear that in the divorce suit or alimony action, previously pending between the parties, a decree reserved in the court the right to amend the same as to alimony, the judge is without authority to award alimony for the support of the minor children.

ARGUED JUNE 12, 1961 — DECIDED JULY 6, 1961.

Leila Mae Smith Barnes Tant brought a child-custody petition in Floyd Superior Court against Dallas Ray Barnes, her former husband. In the petition she alleged such change of condition since the original decree as to entitle her to custody of their two children. Defendant demurred to the petition on general and special grounds. The trial judge sustained the demurrer, but allowed plaintiff to amend. In the amended petition plaintiff alleged that the original 1957 divorce and custody decree awarded custody to her for the week-ends and during her summer vacation, and that defendant did not comply with the mandate of the decree, but moved the children out of the State for two months and kept them for six more months at Savannah, Georgia, without informing plaintiff where they were, thereby preventing her from seeing the children, who thus had no permanent dwelling and were kept in a state of confusion and unrest. It was further alleged: that defendant was financially unable to maintain the two children since his recent marriage to a mother of four; that he neglected his parental duties; that, when plaintiff had custody, she amply provided for the children, and since her marriage she was physically and financially able to care for them.

Defendant Barnes renewed his demurrer to the petition as amended. He also filed a plea of res judicata, in which he set forth former litigation and alleged that the judgment of this court in Barnes v. Barnes, 214 Ga. 595 ( 106 S.E.2d 279), was conclusive of all issues in the case. The judge overruled the demurrer to the petition as amended, and found against his plea of res judicata.

When the case proceeded to trial, the judge announced he would consider the question as to whether defendant was in contempt of court by reason of having disobeyed the court's previous custody order. Thereupon, counsel for the defendant objected to hearing evidence and to consideration by the court of the issue of contempt. The objection stated that no rule nisi had issued or been served on defendant and that he had no opportunity to prepare a defense. The judge overruled this motion and heard evidence as to whether defendant had violated provisions of the former order.

The evidence at the trial was substantially that, on or after June 20, 1960, defendant moved with the children to Atlanta, Georgia, for a few days; thereafter they moved to Orlando, Florida, where they remained for approximately one month; then to Jacksonville, Florida, for another month; and finally in September, 1960, they relocated in Savannah, Georgia. They remained in Savannah until February, 1961, when they returned to the home of defendant's parents in Floyd County. There, on February 21, 1961, defendant was apprehended and served by county officers while he attempted to hide himself and the children in a closet. During their course of moving, defendant furnished the children with no permanent house or place of abode.

Although there was conflict as to defendant's care and maintenance of the children and plaintiff's character, the brief of evidence also revealed that plaintiff's health and financial condition were improved and that both parties had remarried.

At the conclusion of the evidence the trial judge entered a judgment that temporary custody be awarded to plaintiff and that defendant pay a sum for the support of the children, and that he be adjudged in contempt of court. Defendant excepted to the order overruling the plea of res judicata, to the order overruling the renewed demurrer, to the judgment changing custody, to the order adjudging defendant in contempt, and to the judgment requiring him to pay "alimony" for support of the children.

QUILLIAN, Justice.

1. Defendant alleges in his plea of res judicata that this action is barred by the holding of this court in Barnes v. Barnes, 214 Ga. 595 ( 106 S.E.2d 279). Both actions deal with the same subject matter and are similar, but not as to the principal grounds upon which the present action is predicated — specifically, improvement of health and condition of plaintiff, and improper course of conduct and maintenance by defendant derogatory to the children's best interest during the period from June, 1960, to February, 1961 — which were not in esse in the prior action.

"While the judgment fixing custody of children where a divorce is granted is conclusive between the parties and the principle of res judicata is applicable, where a petition is brought in the nature of a habeas corpus, alleging material changes of circumstances substantially affecting the interest and welfare of the children, such proceeding is an independent one and is not an effort to modify the original decree." Stephens v. Sudderth, 216 Ga. 222 (1) ( 115 S.E.2d 519). See also Handley v. Handley, 204 Ga. 57 ( 48 S.E.2d 827). The best interest and welfare of the children is accorded paramount importance. Woodland v. Woodland, 153 Ga. 202 ( 111 S.E. 673); Klebold v. Klebold, 210 Ga. 23 ( 77 S.E.2d 440); Stanton v. Stanton, 213 Ga. 545, 549 ( 100 S.E.2d 289, 66 ALR2d 1401). Therefore, the fact that custody proceedings had preceded this litigation would not preclude an action where fresh evidentiary matter as to change of condition is alleged. Daniels v. Daniels, 213 Ga. 646 ( 100 S.E.2d 727); Woodland v. Woodland, 153 Ga. 202, supra; Willingham v. Willingham, 192 Ga. 405 ( 15 S.E.2d 514); Perry v. Perry, 212 Ga. 668 ( 95 S.E.2d 2). Thus, the trial judge properly overruled the plea of res judicata.

2. Defendant urges that his renewed demurrer to the petition should have been sustained since, where there is no cause of action at the commencement of a suit, there can be no recovery, ( Wadley, Jones Co. v. Jones, 55 Ga. 329), and that such cause of action may not be maintained by a right acquired during its pendency. Mason v. Atlanta Fire Co. No. 1, 70 Ga. 604 (48 AR 585); Wilson v. Missouri State Life Ins. Co., 184 Ga. 184, 186 ( 190 S.E. 552).

The record discloses no objection by the defendant to the amendment. Instead, he merely renewed his demurrer to the petition. When the defendant failed to object, the question raised by the renewal of the demurrer was simply whether the petition as amended set forth a cause of action. Aycock v. Williams, 185 Ga. 585 ( 196 S.E. 54); Cooper v. Mims, 204 Ga. 357 ( 49 S.E.2d 824); McCowen v. Brooks, 113 Ga. 532 ( 39 S.E. 115).

The defendant further asserts that the plaintiff failed to allege a change of condition materially affecting the children's welfare, and hence set forth no cause of action. Code Ann. §§ 30-127 and 74-107 expressly state that the party not in default, where a divorce is granted, shall be entitled to custody of the children. The court, however, may look into all the circumstances of the parties, including the improvement of the health of the party seeking a change in custody provisions, and, after hearing both parties, make a different disposition of the children, exercising such discretion to look to and determine solely what is for the best interest of the child or children. See Pruitt v. Butterfield, 189 Ga. 593 ( 6 S.E.2d 786); Attaway v. Attaway, 194 Ga. 448 ( 22 S.E.2d 50). Here the plaintiff alleged sufficient facts which if proved would authorize the judge to grant a change of custody. Porter v. Chester, 208 Ga. 309 ( 66 S.E.2d 729). See also Handley v. Handley, 204 Ga. 57, 59, supra; Perry v. Perry, 213 Ga. 847 ( 102 S.E.2d 534); Cooper v. Stephens, 214 Ga. 825, 826 ( 108 S.E.2d 274); Smith v. Scott, 216 Ga. 506, 507 ( 117 S.E.2d 528). It follows that the judge did not err in overruling the defendant's general demurrer.

3. From a careful perusual of the record, there appears to be some conflict of evidence. The trial judge's province was to determine the weight and credence to be accorded the proof submitted by each party. Smith v. Bragg, 68 Ga. 650; Weathersby v. Jordan, 124 Ga. 68 ( 52 S.E. 83). Where there is conflicting evidence, the judgment of the trial court will be affirmed. Atkinson v. Atkinson, 160 Ga. 480 (1) ( 128 S.E. 765); Shope v. Singleton, 196 Ga. 506, 507 ( 27 S.E.2d 26); Watkins v. Terrell, 196 Ga. 651 (1) ( 27 S.E.2d 329).

In questions of custody the judge has a wide latitude and discretion in determining what is in the children's best interest, welfare, and happiness. Hammond v. Murray, 151 Ga. 816 ( 108 S.E. 203); Lucas v. Smith, 201 Ga. 834, 837 ( 41 S.E.2d 527); Madison v. Montgomery, 206 Ga. 199 ( 56 S.E.2d 292); Klebold v. Klebold, 210 Ga. 23 (1), supra. This discretion will be interfered with only in those cases where abuse is shown. Adams v. Adams, 206 Ga. 881 ( 59 S.E.2d 366). Under the evidence, the award of custody to the plaintiff was authorized, and the trial judge did not abuse his discretion.

4. In cases of constructive contempt of court, where the alleged contumacious conduct is disobedience to a mandate of the court, not an act in the presence of the court or so near thereto as to obstruct the administration of justice, the law requires that a rule nisi issue and be served upon the accused, giving him notice of the charges against him, and that he be given an opportunity to be heard. Mendel v. Mendel, 202 Ga. 675 ( 44 S.E.2d 257); Williams v. Mann, 188 Ga. 212, 215 ( 3 S.E.2d 557); Harris v. Harris, 205 Ga. 105 ( 52 S.E.2d 598). See also Wheeler v. Harrison, 57 Ga. 24, and Carson v. Ennis, 146 Ga. 726, 728 ( 92 S.E. 221, LRA 1917E 650); Garland v. State of Ga. 99 Ga. App. 826, 830 ( 110 S.E.2d 143).

The notice given by the rule nisi is to afford the accused a reasonable time in which to prepare his defense to the charge that he had violated the court's order. It was error, in the case we now review, for the judge, over the timely objection of the accused, to summarily hear evidence and find him guilty of contempt for failure to abide by the court's previous order, when no rule nisi had issued, and the defendant was not given notice, prior to the hearing, that he would be called upon to show that he had not disobeyed the previous order of the court, or to show legal excuse for his conduct.

5. Where the mother of minor children seeks to gain their custody by showing a change of condition affecting the children's welfare, and there are no pleadings or prayers for relief in respect to alimony or support for the children, and it does not appear that in the divorce suit or alimony action, previously pending between the parties, a decree reserved in the court the right to amend the same as to alimony, the judge is without authority to award alimony for the support of the minor children. Fricks v. Fricks, 215 Ga. 137 ( 109 S.E.2d 596); Zuber v. Zuber, 215 Ga. 314 ( 110 S.E.2d 370); Daniel v. Daniel, 216 Ga. 567 ( 118 S.E.2d 369).

The judgment of the court in the instant case was error in so far as it undertook to require the defendant, father of the children, to pay alimony for their support. Here no question is involved as to whether the mother may in one action seek to gain custody of the children and also obtain judgment requiring the father to furnish money for the children's support, since the pleadings in the case did not present the latter issue.

Judgment affirmed in part and reserved in part. All the Justices concur.