Opinion
35997.
DECIDED JANUARY 25, 1956.
Petition for guardianship. Before Judge Moore. Fulton Superior Court. October 6, 1955.
W. George Thomas, Bruce Edwards, for plaintiff in error.
James M. Roberts, Cohen, Roberts Kohler, contra.
The court did not err in dismissing the petition for guardianship.
DECIDED JANUARY 25, 1956.
Mrs. Margaret G. Lipton filed suit for divorce against Dr. Harry R. Lipton. As a result of their marriage there was one issue, a two-year old girl, Julia Lipton. Dr. Lipton filed a cross-action. They were both given a total divorce. In the divorce proceedings alimony was awarded the minor daughter. $500 per month was to be paid to the wife for the support of the minor child until the mother remarried (or until the child married or reached 21 years of age). In the event the mother remarried, the $500 was to be reduced to $250 per month for the support of the child. In this same divorce decree the child was awarded an undivided one-half interest in the dwelling house of the parties (the other one-half interest belonging to the mother of the child). The wife and the child continued living in the house.
Thereafter, Dr. Harry R. Lipton, hereinafter called the plaintiff, brought an action seeking to obtain for himself guardianship of the property of the child. In doing this the plaintiff instituted a suit in the Court of Ordinary of Fulton County against Mrs. Margaret G. Lipton, hereinafter called the defendant. This case will sound here as between these two parties. The parties were properly served and both appeared in the court of ordinary. The ordinary rendered a judgment in favor of the defendant. The plaintiff appealed the case to the Superior Court of Fulton County where it became a de novo proceeding. After hearing evidence from both parties the Judge of the Superior Court of Fulton County, on motion of the defendant that there was no evidence to show the necessity of a guardian, dismissed the application of the plaintiff. It is on this judgment that the case is here for review.
We have studied this case carefully and have been unable to find any instance in Georgia where such proceedings, under such facts as are here argued, have been followed, and counsel for the plaintiff state that they have been unable to find any authority in point. During the hearing of the proceedings in the superior court for the appointment of a guardian, there was no intimation that there was any mismanagement of the funds or property of the minor child by the defendant. There was no evidence that the defendant was not properly caring for the minor child.
The court did not err in dismissing the petition of the plaintiff.
Judgment affirmed. Townsend and Carlisle, JJ., concur.