Opinion
18792.
ARGUED NOVEMBER 9, 1954.
DECIDED JANUARY 10, 1955.
Habeas corpus. Before Judge Whitman. Fulton Superior Court. September 10, 1954.
George D. Stewart, Durwood Pye, William Hall, for plaintiff in error. T. M. Smith, Jr., Troutman, Sams, Schroder Lockerman, contra.
Where a petition for habeas corpus is brought by a nonresident mother to obtain custody of her minor child in a court having jurisdiction of the father, who is alleged to be illegally restraining the child, and the father files a response asserting material changes in circumstances effecting the welfare of the child since the rendition of the decree awarding custody to the mother, it is erroneous for the court to strike these allegations of the response and to award the custody of the child to the mother on the pleadings then in the case.
ARGUED NOVEMBER 9, 1954 — DECIDED JANUARY 10, 1955.
Mrs. Maree Elizabeth Krelstein filed a petition for habeas corpus in Fulton Superior Court against Thomas H. Dwyer, alleging the following: "The petitioner is a resident of Rochester, New York. The defendant is a resident of Fulton County and is retaining possession of Thomas H. Dwyer, Jr., in the county, and is subject to the jurisdiction of Fulton Superior Court. The petitioner and the defendant were married on November 21, 1938, and are the parents of Thomas H. Dwyer, Jr., who was born May 5, 1940. The petitioner and the defendant were divorced by a decree of Fulton Superior Court entered September 26, 1947. She was awarded permanent custody of the child, and has retained physical custody from the date of the decree "until July of 1954, at which time the defendant refused to surrender physical possession of said child." The detention of the child by the defendant is illegal.
The prayer was for the issuance of the writ of habeas corpus, requiring the defendant to produce the minor child, and the writ was issued. Thereafter, the defendant filed his response, in which he admitted that the allegations in regard to the award of custody were substantially correct, and set out a copy of the decree awarding custody. In paragraphs 5 through 7 of his response he alleged matters occurring since the rendition of the decree awarding custody, which he contended were material changes in circumstances, conditions, and fitness of the petitioner, substantially affecting the welfare and best interests of the child, and he prayed that he be awarded custody of the child.
The case came on for trial on September 8, 1954, and evidence was introduced. On September 10, 1954, before the conclusion of the introduction of evidence, counsel for the petitioner made an oral motion to strike the cross-petition of the respondent (paragraphs 5 through 7) and the prayers of the response, and the court sustained this motion. Counsel for the petitioner then made a motion for judgment in favor of the petitioner on the pleadings, and the court sustained this motion. In the order of the court it was recited that the motion to strike the paragraphs of the response was sustained because the court did not have jurisdiction of the subject matter thereof. The order adjudged that the legal right of custody and possession of the child was in the petitioner, and directed the respondent to deliver possession of the child to her. The respondent excepted to these rulings.
The order of the trial judge shows that no consideration was given by him to the evidence in the case (which had not been concluded) in determining which of the parties was entitled to the custody of their minor child. His order was based on the assumption that he had no jurisdiction to consider the matters alleged in the response occurring since the decree awarding custody.
In Bragassa v. Bragassa, 197 Ga. 140 ( 28 S.E.2d 133), it was held: "A judge of the Superior Court of Fulton County, Georgia, has jurisdiction of a habeas corpus case brought by a nonresident mother against two persons residing in said county, who she alleges are illegally detaining her child from her." The petition for habeas corpus in the present case alleged that the respondent was a resident of Fulton County and was retaining possession of the minor child in the county. The trial court, therefore, had jurisdiction of the habeas corpus proceeding. It is the contention of counsel for the petitioner, however, that, while the court was vested with jurisdiction to inquire into the legality of the restraint, it did not have jurisdiction to inquire into the fitness of the nonresident petitioner to have custody of the child.
It is a well-established rule in this State that, while the award of custody in a divorce proceeding is conclusive between the parties to the decree as to the right of custody at that time, it is not conclusive for all time. In a subsequent proceeding by habeas corpus for the possession of the child, between the parties to the decree, the unfitness of the party to whom custody was awarded, since the date of the decree, may be alleged and proved. Milner v. Gatlin, 139 Ga. 109 ( 76 S.E. 860); Barlow v. Barlow, 141 Ga. 535 ( 81 S.E. 433, 52 L.R.A. (NS) 683); Woodland v. Woodland, 153 Ga. 202 ( 111 S.E. 673); Brandon v. Brandon, 154 Ga. 661 ( 115 S.E. 115); Porter v. Chester, 208 Ga. 309, 310 (4) ( 66 S.E.2d 729).
The response in the present case, alleging matters transpiring since the date of the award of custody to the mother, was an integral part of the habeas corpus proceeding. The petitioner had submitted herself to the jurisdiction of the court to assert her legal right to the custody of the child, and she thereby submitted herself for the decision of all questions legitimately arising in the habeas corpus proceeding.
Counsel for the petitioner rely on the case of Stallings v. Bass, 204 Ga. 3 ( 48 S.E.2d 822), to support their contention that the courts of the petitioner's residence have acquired jurisdiction over any new questions concerning the custody, control, and general welfare of the minor child. The Stallings case, which was by a divided court, is not in point on its facts with the present case. In that case the father, who was a major in the Marine Corps, stationed in South Carolina, brought a petition against the mother, a resident of Arkansas, in Richmond Superior Court, to modify an award of custody entered in that court, and this court held that the courts of this State did not have jurisdiction of the case. In the present case the respondent was a resident of Fulton County, and he was detaining the child in Fulton County, which clearly gave the courts of Fulton County jurisdiction of the habeas corpus proceeding. Should this court consider the rulings in the Stallings case sound, and applicable in the present case, it still could not affirm the judgment of the trial court in the present case, since in the Stallings case it was held that the court was totally without jurisdiction. In the present case the trial court retained jurisdiction for the limited purpose of granting the prayer of the petitioner.
The present case is controlled in principle by the recent case of Stout v. Pate, 208 Ga. 768 ( 69 S.E.2d 576). The trial court erred in striking that part of the response setting up matters transpiring since the award of custody, affecting the interest and welfare of the minor child, and in entering a judgment on the pleadings directing the respondent to deliver the child to the petitioner.
Judgment reversed. All the Justices concur.