A decree of divorce in a case in which the custody of minor children is involved, awarding the children to one of the contesting parents, is binding and conclusive between the parties, unless a change of circumstances affecting the welfare of the children is made to appear. Where such a change was alleged, it was not error for the judge of the superior court to overrule a motion to strike a cross-petition of the defendant, and where there was evidence that the living conditions and conduct of the children were much worse than as shown upon the former trial, the judge did not err in transferring the investigation to the juvenile court for trial and determination.

No. 14841. MAY 8, 1944.

This is the second appearance of this case in the Supreme Court. A full statement of the original proceedings is set forth in the opinion in Fortson v. Fortson, 195 Ga. 750 ( 25 S.E.2d 518), where an order refusing to change or modify a prior judgment, granting a divorce and awarding custody of the children to the mother, was affirmed. Subsequently, the wife filed a petition alleging that the defendant was in default in the payment of alimony, and asking that he be held in contempt. The defendant filed an answer in the nature of a cross-petition which alleged substantially the following: He has not paid all of the alimony because he has been in the army and his income is limited. Shortly after the trial court refused to modify the judgment awarding custody of the children, the plaintiff voluntarily turned them over to the defendant. The children remained in his custody until August, 1943. Since that time, they have been with their mother, and she has continually neglected them. They have been allowed to roam the neighborhood without proper parental care. The plaintiff is unfitted and unsuited to have their custody, and the way she and the children have been living the last several months is detrimental to the health and welfare of the children. A thorough and painstaking investigation will show it to be for the best interest of the children that they be taken from the custody of the plaintiff and placed in the custody of someone else who can properly look after their interest. The prayer was that the defendant be discharged from the rule for contempt, and that the court transfer the question of custody of the minor children to the juvenile court of Fulton County for investigation, trial, and determination. An oral motion to strike the defendant's cross-petition on the ground that insufficient facts were alleged to authorize the relief prayer, was overruled, and the plaintiff-wife excepted. On the trial, the evidence was substantially the same as on the previous hearing except there was testimony that the living conditions and conduct of the children were much worse than as shown upon the former trial.

The judge passed an order which, after adjudicating the defendant to be in contempt, declared in part: "That this matter be and the same is hereby referred to the juvenile court for investigation, trial, and determination, with full power and authority to make any disposition that it may find proper and legal for the welfare of said children. This court is reluctant to transfer the duty imposed upon it by law, but it is of the opinion that the evidence justifies a further and more comprehensive investigation than the facilities of this court permit; and further, that it may be that supervision through investigators, such as the juvenile court has, may be found advisable, especially, since this court has only been asked to transfer the case and has not fully heard all the questions which might or could arise if a change of custody should be deemed advisable."

The plaintiff-wife in a direct bill of exceptions excepted to this judgment.

ATKINSON, Justice. (After stating the foregoing facts.)

Where an order or decree has been entered, awarding the custody of minor children to one of the contesting parents, such judgment is binding and conclusive between the parties, unless a change of circumstances affecting the welfare of the children is made to appear. Brooks v. Thomas, 193 Ga. 696 ( 19 S.E.2d 497); Jordan v. Jordan, 195 Ga. 771 (2) ( 25 S.E.2d 500), and cit. In the instant case, the father by cross-petition in responding to a rule for contempt, charged that the children, subsequently to the former trial, had been continuously neglected by their mother; that she was unfitted and unsuited to have the custody of the children; that the manner and conditions under which the children were living were detrimental to the health and welfare of the children; that, upon a through investigation, it would be determined for the best interest of the children to take them from the custody of the mother and place them in the custody of someone who could properly look after them. In view of the allegations as a whole in the cross-petition, we think it could be said that they presented an insistence that there had been a change of circumstances affecting the welfare of the children. Accordingly, the trial judge did not err in overruling the oral motion to strike the cross-petition of the defendant, upon the ground that insufficient facts were alleged to authorize the relief prayed.

On a previous application of the father for a change of custody, the trial judge passed an order which stated in part: "The evidence, in the opinion of the court, is not sufficient to justify the setting aside or modification of the decree of May 8, 1941; and the defendant's prayer that permanent custody of the children be awarded to him is, at this time, denied. It is the order of this court that the restraining order be continued in so far only as it restrains the defendant from taking permanent custody of the children, it being the opinion of the court that the decree of May 8 1941, with reference to the custody of the children, should, as of the present, remain in full force and effect." In dealing with the question as to changed conditions, this court on a former hearing said: "The evidence is rather voluminous, and need not be quoted. All of it has been carefully considered, although only the gist of it has been stated. While it was very strong for the defendant as to present conditions, there was nevertheless a material conflict. At any rate, it can not be said that a finding for the defendant was demanded as a matter of law, on the issue as to change in circumstances." Fortson v. Fortson, 195 Ga. 758 (supra). In Slate v. Coggins, 181 Ga. 17 ( 181 S.E. 145), it was held: "A decree of divorce in a case in which the custody of a minor child is involved, awarding the child to one party or the other, is final, except where a change of circumstances is shown. Where such change is alleged, it is not error for the judge of the superior court to transfer the investigation thus called for to the juvenile court for investigation." See also Owens v. Owens, 191 Ga. 568 ( 13 S.E.2d 348). On the trial of the case at bar, while the evidence was substantially the same as on the previous hearing, the additional testimony that the living conditions and conduct of the children were much worse than as shown upon the former trial, was sufficient to authorize the judge of the superior court to transfer the investigation to the juvenile court, in accordance with the provisions of the Code, § 24-2402 (d).

Judgment affirmed. All the Justices concur.