Opinion
14031.
MARCH 14, 1942. REHEARING DENIED MARCH 30, 1942.
Habeas corpus. Before Judge Paul S. Etheridge. Fulton superior court. October 10, 1941.
Fine Hendrix, for plaintiff. William A. Fuller, for defendants.
1. A decree awarding custody of a child in a divorce case is conclusive as between the parties to such decree, unless a change of circumstances affecting the welfare of the child is shown. In the instant suit by a mother against a father, for the writ of habeas corpus, to obtain the custody of a child awarded to the father in a decree of divorce between him and the mother, the judge was authorized to find that the evidence produced upon the hearing failed to show such a change of circumstances affecting the welfare of the child as would authorize the opening and modification of that decree.
2. Considered in the light of the former decree involved and the other circumstances in the case, it was not error for the court, on the hearing of such a suit, to exclude evidence that the mother was able at that time to provide a home for the child.
3. While in a case of this character the judge may exclude the parties litigant from the court-room while the child involved is testifying, this is a matter resting in the sound discretion of the judge. The instant record fails to show an abuse of discretion in refusing, on motion, to exclude the parties while the child was testifying.
No. 14031. MARCH 14, 1942. REHEARING DENIED MARCH 30, 1942.
Mrs. Nancy Ruth Thomas obtained a decree of divorce from her husband, Russell Johnson Thomas, in the State of Nevada in May, 1935. The husband thereafter filed a suit for divorce in Fulton superior court. On December 7, 1935, the parties entered into an agreement respecting the custody of the two minor children of the parties, which on March 9, 1936, was made the judgment of the court and incorporated into the decree in the latter case. Under this agreement full custody of the children was given to the husband until the wife should become able to take care of and maintain them, at which time she was to be entitled to their custody from June 1 to September 1 of each year, if she desired such custody. The agreement gave each parent the right to visit and see the children while in the custody of the other, and provided that each should be responsible for the support and maintenance of the children while in his or her custody. On October 30, 1937, by a supplemental agreement between the parties, approved by the judge of the superior court, it was provided that each party should be entitled to keep the younger child one afternoon each week and a stated portion of each week-end during the period that the other parent had custody of the child. On September 20, 1941, the mother, who had remarried, filed a petition for habeas corpus against her former husband and Mrs. W. E. Finch, his sister, seeking custody of the younger child and modification of the previous orders of the court respecting his custody. After hearing evidence the judge denied the prayers of the mother, and remanded the child to the custody of his father. The exception is to this judgment.
From the pleadings and the evidence introduced on the trial it appeared that William Bascom Thomas, whose custody is here involved, was about three years of age at the time his parents were divorced; that since the child's father, to whom the custody of the child was awarded, did not maintain a home, he arranged with his sister, Mrs. Finch, to take care of the child; that Mrs. Finch had no children of her own, and gave the child such attention as she might have given a child of her own; and that the father boarded elsewhere, but paid the child's expenses and visited him often. It appeared from the evidence that Mrs. Finch's home had only two bedrooms, and that the child and his aunt, a woman about fifty-five years of age, shared the same bedroom and slept in the same bed until shortly before the trial, when the child was given a room to himself. The mother testified that on one occasion the child came to visit her, having a high fever from a cold, and that he should have been in bed at the time; but generally the evidence showed that he received all necessary and proper attention at the home of his aunt. The child, who was nine years old at the time of the trial, testified that he was well treated at the home of his aunt, but stated that he thought he would prefer living with his mother. The father alleged in his answer that his financial circumstances had not changed since the divorce; and there was no evidence controverting this allegation.
1. A decree in a divorce case awarding custody of a child is conclusive as between the parties to such decree, unless a change of circumstances affecting the welfare of the child is shown. Williams v. Crosby, 118 Ga. 296 (2) ( 45 S.E. 282); Milner v. Gatlin, 139 Ga. 109 ( 76 S.E. 860); Shields v. Bodenhamer, 180 Ga. 122 ( 178 S.E. 294). The judge was authorized to find that the evidence in the instant case failed to show a change of circumstances affecting the welfare of the child. It is urged that the fact that the child lived in the home of his aunt, and not with his father, showed that the father had breached his contract with reference to the care and custody of the child, and amounted to a change in circumstances. The child was about three years of age at the time he was awarded to the custody of his father. At this tender age the child required more attention than the father, who maintained no home of his own, could give the child in a boarding-house. The father therefore arranged with his sister to take the child in her home and care for him, the father paying his expenses. There is no evidence that the father in making this arrangement relinquished to his sister his right to parental control and custody of the child. Instead of showing a change of circumstances since the divorce, these facts show that the circumstances of the father at the time of the divorce were such as to require him to take some such action as he did take in order to insure that the child received proper care and attention. It may also be noted that the child was under the care of his aunt at the time the supplemental agreement between the parties respecting his custody was approved by the court.
2. The plaintiff excepted pendente lite to an order of the court refusing to allow her to show that she is now in a position to provide a home for the child. Under the circumstances of this case this ruling was not error. The agreement of the parties, which was made the decree of the court at the time of the divorce, discloses that the parties anticipated that the mother might become able to provide a home for the child. It was provided that the father should have full custody until the mother should become able to take care of and maintain the child, at which time she should have custody of the child from June 1 to September 1 of each year, if she so desired. It is not contended that the mother has not been accorded custody during the stipulated months of each year since she became able to provide for him. The purpose of this action is to deprive the father of custody during the remainder of the year. Since the decree anticipated that the mother might thereafter become able to provide a home for the child, and awarded custody accordingly, the fact that the mother did become able to provide a home for the child can not be said to constitute a change of circumstances authorizing the court to open and modify the former decree between the parties. This fact was therefore irrelevant upon the trial of this issue. On the question whether or not the fact that one parent has improved his ability to care for a child will in any event authorize the court to open the former decree and take the child from the other parent, in the absence of evidence that the latter has for some reason become an improper person to have the custody, see Kirkland v. Canty, 122 Ga. 261 ( 50 S.E. 90); Sells v. Sells, 172 Ga. 911 ( 159 S.E. 237); Shields v. Bodenhamer, supra; Milner v. Gatlin, 143 Ga. 816 (4) ( 85 S.E. 1045, L.R.A. 1916B, 977); Oetter v. Oetter, 150 Ga. 118 ( 102 S.E. 818).
3. The plaintiff excepted pendente lite to the ruling of the court refusing, on her motion, to exclude all parties litigant from the court-room while the child involved was testifying. The plaintiff cites, to support her position, Willingham v. Willingham, 192 Ga. 405 (2) ( 15 S.E.2d 514), where, in a case of this character, it was held not to be an abuse of discretion for the judge to exclude the parties while the children were testifying. While the judge may in his discretion exclude the parties in such a case, he is not required to do so, as a matter of law. The judge did not abuse this discretion in refusing to exclude the parties, or in remanding the child to the custody of the father.
Judgment affirmed. All the Justices concur.