Opinion
21534, 21535.
ARGUED FEBRUARY 12, 1962.
DECIDED MARCH 12, 1962.
Custody of children. Hall Superior Court. Before Judge Kelley.
Stow Andrews, Frank B. Stow, Robert E. Andrews, for plaintiff in error.
Harben Harben, Sam S. Harben, Jr., contra.
1. No exceptions having been taken to a previous decree awarding custody of minor children to their maternal grandmother, such decree was binding on the mother as of the time it was entered.
2. The evidence being conflicting, there was no abuse of discretion on the part of the trial judge in awarding the children to the custody of the grandmother, and this court will not interfere with his judgment.
ARGUED FEBRUARY 12, 1962 — DECIDED MARCH 12, 1962.
Mrs. Betty Lou Wright Healan was formerly Mrs. Betty Lou Wright Conner, the wife of Robert M. Conner. The minor children of the marriage are Gregory E. Conner, age eight, and Alexis A. Conner, age seven. The children had, since 1958, been in the custody of their maternal grandmother, Mrs. Ruby Irene Wright, having been awarded to her in a habeas corpus case, which she instituted in Hall Superior Court against the before-mentioned parents. On August 28, 1959, the marital relation of the parents was dissolved by a decree entered in the Superior Court of Hall County, and in conformity with a valid contract entered into between the parents, Mrs. Betty Lou Wright Conner and Robert M. Conner, and the grandmother, Mrs. Ruby Irene Wright, custody of the children was again awarded to the latter, and Mr. Conner was required to pay to Mrs. Wright $25 per week for the children's support.
The alleged change of condition related to (a) deterioration in the character and conduct of the grandmother. Mrs. Wright, since she was entrusted with custody of the children, and (b) to the improvement of Mrs. Healan's ability to support the children, supply their needs, contribute to their peace and comfort, and give them better educational advantages.
In reference to the first of these subjects, the petition specially alleged: "Plaintiff shows that the defendant, Ruby Irene Wright is preventing and prohibiting plaintiff from visiting and having custody of plaintiff's children and that Ruby Irene Wright is keeping said children under immoral, obscene and indecent influences likely to degrade their moral character and devote them to a vicious life for the following reasons: (a) Defendant drinks whiskey and comes about said children in an intoxicated condition. (b) Defendant curses and uses vile and obscene language in the presence of said children. (c) Defendant whips and beats said children unmercifully and without cause with a heavy leather belt. (d) The facts and circumstances herein alleged relating to the sanitary conditions under which said children are kept are insufficient for the proper rearing of children. (e) Defendant, on one occasion after August 27, 1959, pointed a shotgun at plaintiff and threatened to kill plaintiff; all of these acts being done in the presence of said minor children.
"Plaintiff shows that the defendant receives from Robert M. Conner Twenty Five ($25.00) Dollars a week, said sum to be used exclusively for the support and maintenance of the minor children named herein, and that the defendant does not use said money for that purpose but uses said money to provide for defendant and her husband's living expenses.
"Plaintiff shows that all of the above enumerated acts of immorality and misconduct on the part of the defendant Ruby Irene Wright happened after August 27, 1959, and said acts constitute a sufficient change in condition to authorize this court to revoke and modify the contract and decree, awarding said children to defendant, to provide custody of said minor children where same would be to the best interest and welfare of said minor children."
As to Mrs. Healan's improved opportunity to care for the children the petition alleged: that, at the time the children were awarded to the defendant, they were placed in the home where the plaintiff was residing; that, at the time the children were awarded to the defendant, it was to the best interest of the children that they be placed in the home where the plaintiff was residing and in the home of the defendant where the plaintiff could give the children the loving care of a mother; that she and her present husband, Howard Arnold Healan, are now residing in Buford, Gwinnett County, Georgia; that the apartment in which she now resides has five rooms with all modern conveniences including heat, plumbing, and inside bath and toilet; that she is now in a position to take said children and give them the loving and affectionate care a mother should be privileged to give her children; that the school facilities in Buford, Georgia, are of the highest standard and, in the event the custody of said children is awarded to her, they will be afforded better school facilities than they now have; that Arnold Healan is a young able-bodied man approximately 31 years of age, a brick mason by trade, and earns from $120 to $130 per week; that Arnold Healan is willing to accept the responsibility, obligation, and duties of a father to said children; that the home where said children are now residing is not equipped with suitable sanitary facilities, that the entire family of the defendant and the two minor children herein named use water from an open spring.
Mrs. Wright filed her answer in which she denied the material allegations of the petition, and "For further plea and answer defendant shows that plaintiff and her husband Arnold Healan are not fit and proper parents to have the custody of children, to wit: their conduct, demeanor, and manner of living demonstrates instability, lack of security, lack of responsibility; further they are insolvent and are wholly lacking in financial, moral and spiritual resources; that the health, moral, and general welfare of these children would be adversely affected if the children were exposed to the said environmental conditions, and would not be to the best interests of these children or society.
"For further plea and answer defendant shows that since the decree of August 28, 1959, there have been no changes in conditions detrimental to the welfare of the children or which would warrant a change in the custody of the children. Defendant further shows that at no time since the said decree has plaintiff shown any interest in the children, that plaintiff has not demonstrated any affection for the children, that while plaintiff was living in defendant's home, she did not help in caring for the children, that she frequently left home for days and weeks without telling anyone she was going or where she had been, that plaintiff has never assisted defendant in any way in providing extra activities for their benefit, and contributed nothing towards their support. Defendant shows that plaintiff has always been welcome to visit the children at any time and she can visit them when she chooses; she has been invited on numerous occasions by defendant to visit the children, and that at no time has defendant denied plaintiff the right to visit with the children.
"Defendant shows that the children are happy with her and their grandfather and do not want to leave them and they become very emotionally disturbed when it is ever suggested they may have to go and live with their mother and stepfather."
Mrs. Healan testified to the allegations of her petition, that Mrs. Wright, subsequently to the children being awarded to her, became addicted to alcoholic drink and cursed in the children's presence; that she whipped the children cruelly and without cause, kept them in a constant state of apprehension that they would be severely punished, failed to supply them with sufficient food and clothing and otherwise mistreated them. She related that on one occasion Mrs. Wright threatened to kill her with a gun she held in her hands and thereby caused the children distress and terror. In this particular she was corroborated only in part by her former husband, Robert M. Conner. Mrs. Healan also testified that she had earned $46 per week ever since her marriage to Arnold Healan and that his weekly earnings were from $150 to $200 per week. She also gave evidence as to the allegations of her petition that she and her husband lived in a comfortable rented home at Buford, which was equipped with modern conveniences such as an indoor toilet and bath, whereas, Mrs. Wright's home was not furnished with sanitary appliances and the water supply of the household was from an open spring. Several witnesses testified that Mrs. Healan and her husband enjoyed good reputations at Buford where they had lived for about six months, and there was evidence that Mrs. Healan kept a clean house and was an excellent cook. Mr. Healan did not appear as a witness or otherwise signify his willingness to accept the children in the home.
Mrs. Healan admitted her husband drank some; that they owed debts they were paying on; that she was aware when she was going with Healan that he was married and had a child, and that his wife talked to her concerning their relationship, but she could not remember what she said.
Mrs. Wright testified she cared for the children well, had never beat or mistreated them, loved them devotedly, clothed them well and gave to them plenty of nutritious food and milk. She expressly denied she drank or cursed. She further testified that she carried the children to church and Sunday school and brought them under the influence of a family altar established by her and her husband. She denied she had mistreated the children in any manner. Her explanation of the episode involving the gun was that there was an old gun in the house that had neither hammer nor trigger, that there were no shells in the house with which to load the gun on the occasion in question and if it had been loaded it would not fire. She related that one morning when her daughter, then Mrs. Conner, returned home from being out the night before with Healan, she was in a pitifully beat up condition and stated they had been in an automobile wreck. She (Betty Lou) insisted on going away with Healan who was sitting in the yard in an obviously intoxicated condition. Mrs. Wright admitted picking the gun up, but denied she threatened her daughter. Her testimony as to the impotent condition of the gun was not disputed, but was corroborated by her parents who arrived and carried Mrs. Conner to the doctor, where it was discovered that her arm was broken, and on the return from the doctor's office Mrs. Wright further testified they observed Mr. Healan "passed out" in his automobile. This testimony was not disputed.
A preacher testified as to Mrs. Wright being a good Christian woman who with the usual regularity of church goers brought the children to his church. A number of witnesses, close neighbors and frequent visitors to her home, testified Mrs. Wright was a good woman who worked hard, cared for the children well, and lavished affection upon them. The neighbors testified Mrs. Wright kept a well filled freezer locker, that Mr. Wright cured his own beef and pork and that the children were given all the food they wanted. Some of these witnesses testified they had known Mrs. Healan for many years and that her reputation in the community was bad.
Mrs. Katherine Healan of Winder, who was not in any particular disputed, testified that she was formerly married to Arnold Healan; that they had a happy home together and all went well until the plaintiff, who was then Mrs. Conner, began going with Healan; that at the time she and Healan had one child, a little girl, and that she was pregnant with another; that Healan and Betty Conner would drive by her house "real slow" hugging and kissing each other; that Arnold Healan had promised to leave Betty Conner alone, but had continued to see her; that she had talked to Betty Conner who promised to quit seeing Healan; that they continued to see each other and that she (Katherine) and Healan separated and were later divorced.
She further testified that Healan was not paying his child support, being some $800 in arrears; that she had filed a contempt citation against Healan for the support money; that Healan had called her several times but she refused to speak to him; that he had broken into her home one night in February, 1961, kicked the door down, threatened to kill her, knocked holes in the wall, and terrified her and the children; that for these acts he had been put under a thousand dollar peace bond, and the grand jury had returned a true bill against him for burglary, which bill was duly introduced into evidence.
Mrs. Katherine Healan's testimony was in part corroborated by the records of Barrow Superior Court. A certified copy of an indictment charging Arnold Healan with burglary in connection with breaking into her house was returned by the grand jury of the county on September 30, 1961, and another true bill was returned on the same day charging him with abandoning his children.
State Patrolmen Rueben Lyons and Harold E. Groover testified that as late as June 25, 1961, before the trial of the habeas corpus case on the 4th day of October, 1961, they arrested Arnold Healan at Rest Haven, an incorporated town that is adjacent to Buford, in Gwinnett County. They both testified he was at the time very drunk, and armed with concealed brass knuckles and a pistol.
At the conclusion of the evidence the trial judge found that it was to the best interest and welfare of the children that they remain in the custody of Ruby Irene Wright and ordered that she retain custody. From this judgment the plaintiff brings her appeal.
The defendant brings her cross-bill of exceptions contending that the trial judge erred in overruling her demurrers to the plaintiff's petition.
1. The decree of Hall Superior Court previously entered awarding the custody of the children to their maternal grandmother was, as of the time it was entered, binding upon the mother, no exceptions having been taken to the same. Lockhart v. Lockhart, 173 Ga. 846, 855 ( 162 S.E. 129); Chumley v. Irwin, 213 Ga. 537 ( 100 S.E.2d 199); Grayson v. Grayson, 217 Ga. 133, 135 ( 121 S.E.2d 34).
2. On the trial of the habeas corpus case brought by the mother of the children subsequently to the decree, the only issue was whether, since the decree was entered, there had been such material change of conditions affecting the welfare and happiness of the children as warranted a judgment that they be taken from the grandmother and placed in the custody of the mother. The mother based her contention that such change of condition had occurred on account of deterioration in the grandmother's character and conduct, the mistreatment of the children by the grandmother, and the fact that the grandmother's home was not a healthy and wholesome place in which the children might be reared.
The evidence adduced upon the trial was in sharp conflict, but apparently preponderated in the grandmother's favor. The evidence as to the worthiness of the mother was in conflict and there arose a strong inference from the evidence adduced upon the trial that she had mistreated the children, that her moral character was doubtful, and that the home in which she proposed to rear the children was that of her present husband who had for months failed to support his own small children by a previous marriage.
This court has uniformly recognized the rule "that the judge exercises a sound legal discretion, looking to the best interest of the child or children, and that this court does not interfere with his judgment unless that discretion appears to have been abused." Willingham v. Willingham, 192 Ga. 405, 406 ( 15 S.E.2d 514). There was no abuse in discretion on the part of the trial judge in awarding the children to the custody of the grandmother.
Judgment on the main bill of exceptions affirmed. Cross-bill of exceptions dismissed. All the Justices concur.