Opinion
21702.
SUBMITTED JUNE 12, 1962.
DECIDED JUNE 25, 1962.
Custody of children. Henry Superior Court. Before Judge Brown.
Albert Wallace, for plaintiff in error.
Ernest M. Smith, contra.
On July 31, 1959, a final decree of divorce was entered in the Superior Court of Clayton County between Mary Ellen Murphy and J. L. Murphy. Custody of their three minor children was awarded to the mother for 11 months of each year and to the father for the remaining month with other visitation rights. On September 2, 1961, the father filed a petition in the Superior Court of Henry County against Mary Ellen Murphy Dixon, his former wife, alleging that during June 1960 he obtained custody of the 3 minor children for visitation as provided in the decree; that he learned during this time of the immoral conditions existing in the defendant's home where the children lived and that his former wife had become an unfit person to have custody of their children. His petition prayed for permanent custody of the children and that defendant be enjoined from attempting to recover possession of them pending a final adjudication of the cause.
The defendant answered his petition and denied those allegations which charged her with misconduct and alleged that plaintiff was an unfit person to have custody of the children at any time. She prayed for permanent custody without visitation rights in the plaintiff.
On the hearing, the evidence relating to the mother's alleged misconduct and unfitness was conflicting and there was some evidence of the plaintiff's unfitness. The trial judge awarded custody of the children to their mother with the same visitation rights in the father as originally given him. The father excepted. Held:
Under the conflicting evidence in this case, it cannot be held as a matter of law that the trial judge, who saw and heard the parties and the witnesses, abused his discretion in making the award complained of; and since no abuse of his discretion appears from the record, this court will not interfere to control his judgment. Code Ann. § 74-107; Slade v. Slade, 212 Ga. 758 (2) ( 95 S.E.2d 680); Atkinson v. Atkinson, 160 Ga. 480 ( 128 S.E. 765); Good v. Good, 205 Ga. 112 (1) ( 52 S.E.2d 610); Adams v. Adams, 206 Ga. 881 ( 59 S.E.2d 366); Klebold v. Klebold, 210 Ga. 23 ( 77 S.E.2d 440).
Judgment affirmed. All the Justices concur.