Opinion
37345.
DECIDED OCTOBER 28, 1958.
Guardianship. Hall Superior Court. Before Judge Kelley. July 1, 1958.
P. T. McCutchen, Herbert Edmondson, for plaintiffs in error.
Herman J. Spence, R. Wilson Smith, Jr., contra.
1. While it is true that parental control may be lost by voluntary contract, the terms of such contract must be clear, definite and unambiguous.
2. This court will not disturb the first grant of a new trial where the verdict was not demanded by the law and evidence.
DECIDED OCTOBER 28, 1958.
B. R. Spainhour filed an application in the Court of Ordinary of Hall County requesting that he be appointed guardian of the person and property of Carol Lynn Hamm. Mrs. W. H. Sailors filed a plea to the jurisdiction and an intervention and objections to the appointment of the applicant. Mrs. Sailors insists in her plea that the child's domicile is in Gilmer County rather than Hall County. The ordinary sustained the plea to the jurisdiction and the case was appealed to the Superior Court of Hall County.
Carol Lynn Hamm is the daughter of Tom Hamm who died leaving the child an orphan. At the time of his death, Tom Hamm's domicile was in Hall County.
On the trial of the plea to the jurisdiction, Mrs. W. H. Sailors testified: "The first time I ever got possession of her was in June 1952. This came about by the fact that Mr. Spainhour who is an uncle of Tom Hamm, said to me when he was in Ellijay that he was keeping Carol in Atlanta and having to hire some one to look after her and I asked him why didn't he bring her up there and let us keep her with our daughter, Brenda, and he said that he might do that. In about three weeks Mr. Spainhour called and said he would bring her up and he did, that was in June 1952 and she stayed with us until August of the next year which was about fourteen months. Her father, Tom Hamm, was in the service and stationed in Germany at that time. In August of `53 the Spainhours came and got her. Tom came home from the service in October of that year and Carol stayed with them until July of 1954. In July of `54 we received a letter from Tom and we went over and got the child from the Spainhours. The child has been in our home ever since with the exception of when Tom carried her to Texas that Christmas to see her grandmother. Tom has been in our home once a month or every six weeks. He never raised any objections to us having the child in our home but was very pleased and very happy as it was a burden off his mind to have Carol cared for and loved and given the attention of a mother. After Tom left the Spainhours and moved to the hotel he told me to keep the child and care for it and if anything ever happened to him he wanted me to see that she stayed with me. I told him that that must be in black and white and he said that he would have it fixed that way and when he came back to my house he said that he had fixed a will and she was to be cared for and I was to keep her. Tom died as a result of an airplane accident which he was in on July 3, 1955. The child was in our possession at the time he died and had been for nearly a year. Carol's mother died in 1950 when Carol was about 10 months old. Mr. Spainhour's first wife was Nell Brewer, Judge Brewer's daughter. I don't know when the Spainhours got Carol, I do not know whether Tom was in the service or not when Carol's mother died. When the child came to my house Tom was in Germany because he sent some records and they were mailed from Germany Mr. Spainhour came to our motel after Miss Nell had died and he was a widower at that time. We were friends with Mr. Spainhour and in our conversation with him he said that they were living in Atlanta and he was having a time with her and had to hire somebody to tend to her. Just before Tom came home from the army and after Mr. Spainhour had married again they came over and got Carol and carried her to their home and Tom came and stayed there with the Spainhours and Carol. She went to school and remained there from August 1953 until July 1954. The Spainhours lived on the Dawsonville Highway in Hall County, Georgia, and Tom was a resident and domiciled in Hall County at the time of his death. Tom was in the Reserve Forces of the Armed Forces but did active-duty training at different times. When I got the child in `54 Tom said he was going to camp for two weeks. Nothing was said as to how long I was to keep the child. I did not see Tom for 6 to 7 weeks after that time. He did not send any checks at that time but he did send some checks later and signed his name and told me to buy what she needed and I filled them out, he always sent them and when she needed things I would fill them out. That didn't support her because I did not charge for keeping her, the checks which I filled out were for incidental things like dental bills, tuition, and little things she needed and wanted, this continued until his death. I still have some checks he sent me which I have not filled out. Tom said if anything ever happened to him he wanted me to see after the child, he said that on several occasions. That was contingent upon something happening to him, he was on a flying status with the army. Tom came over and spent the night sometime and he came by when he was out working but he did not give her any instructions, he did not try to control or supervise her when she was in my home, he didn't offer to. He was free to take her away any time he wanted to, he was her father and he could have; that was true up until the time he died, that was his right, he was her father. He was her father and if he wanted to have control and supervision over her he could have, but he didn't ask for it. Under my view he had the right to control and supervise her, she was his daughter. I do not know how many times Tom was in my home from July of '54 until July `55 when he was killed. He was there once a month or 6 weeks and did spend the night some of the time and visit a while the other times. He was there on Thursday before he died on Monday and Carol was in our possession at the time he died."
Clarence A. Watkins, Jr., testified: "I knew Tom Hamm for about two years before he died he was in the same Air Force Reserve Unit that I was and he visited in my home frequently. I have two children, 10 and 4 years of age. Tom had told me about his daughter. He told me that she was staying with the Sailors in Ellijay because his wife was dead and he sent her over there for them to raise. He said that if anything happened to him he wanted Mr. and Mrs. Sailors to have custody of her and to bring her up. He was very happy about the Sailors having her and he said he had her fixed up where she had a good home and they were real nice people and he knew if anything happened to him that she would have a good place to stay and be brought up. The last time I saw Tom was in June before he was killed. Tom told me that they were taking care of her and if anything happened to him he wanted them to continue to take care of her. To have custody of her. I do not recall the exact date I heard the word `custody' but I have not heard it recently. He said if anything happened to him he wanted them to have custody. That is not all that he said about custody, he said that they were taking care of the child and the child was happy and going to school there. The first time he ever mentioned it to me was when I met him in 1953 about July or August, he was not in my unit in the summer of 1953 but came in shortly thereafter. We went to camp in July of `53 and he came into my unit shortly thereafter in the latter part of July or August. I met him the latter part of July or August of `53 at Dobbins Air Force Base at a regular monthly meeting, we met on weekends. He told me his child was with the Sailors and that if anything happened to him he wanted them to have custody. I cannot say exactly when he said this, he said it many times. He told us that if he was ever killed or if anything happened to him in that way, that he had Carol well taken care of financially and otherwise, and he had it arranged that Mr. and Mrs. Sailors would have custody of the child."
At the conclusion of the above evidence the judge directed a verdict for B. R. Spainhour, applicant, on the issue raised by the plea to the jurisdiction.
The case then went to trial on the application for guardianship, and the jury found for Mr. and Mrs. W. H. Sailors. The applicant, B. R. Spainhour, filed a motion for a new trial which was granted. The protestants except to granting of the motion for new trial and the direction of the verdict on the plea to the jurisdiction.
1. The intervenor insists that the trial judge erred in directing a verdict against her plea to the jurisdiction. Code § 79-404 provides: "The domicile of every minor shall be that of his father, if alive, unless such father shall have voluntarily relinquished his parental authority to some other person. In such event the domicile of the minor shall be that of the person to whom parental authority has been relinquished, or, his master, if an apprentice, or his employer; if neither master nor employer, then the place of his own choice; if the father shall be dead, then the domicile of the minor shall be that of his guardian, if he has one in this State; if no guardian, then of his mother, if alive; if no mother, then of his employer; if no employer, then of his own choice. The domicile of an illegitimate child shall be that of his mother."
It is undisputed that at the time of his death, Tom Hamm's domicile was in Hall County. Therefore, upon his death his infant child's domicile was also Hall County, unless he had previously voluntarily relinquished his parental control to some one in another county.
The intervenor contends that the child's domicile is in Gilmer County and, under authority of Code § 49-105, the Ordinary of Gilmer County rather than Hall County has jurisdiction of the issue. She bases this contention upon the theory that Tom Hamm had relinquished his parental control to her and her husband and had thereby changed the child's domicile to Gilmer County. The intervenor's testimony relative to this point was in part that: "After Tom left the Spainhours and moved to the hotel he told me to keep the child and care for it and if anything ever happened to him he wanted me to see that she stayed with me. I told him that that must be in `black and white' and he said that he would have it fixed that way and when he came back to my house he said that he had fixed a will and she was to be cared for and I was to keep her. Tom said if anything ever happened to him he wanted me to see after the child, he said that on several occasions. That was contingent upon something happening to him, he was on a flying status with the army."
While it is true that parental control may be lost by voluntary contract (Code § 74-108), the terms of such contract must be clear, definite, and unambiguous. Miller v. Wallace, 76 Ga. 479 (2 Am. St. R. 48); Looney v. Martin, 123 Ga. 209 ( 51 S.E. 304); Manning v. Crawford, 8 Ga. App. 835 (3) ( 70 S.E. 959).
The evidence adduced upon the trial of the issue as to jurisdiction of the court showed no such contract. The statement attributed to the deceased father that if "something happened to him," he wanted the intervenor to have custody of the child was without consideration, and amounted to no more than an expression of the father's desire concerning the care and custody of the child, in the event of his death. The trial judge did not err in directing a verdict contrary to the plea to the jurisdiction.
2. The verdict not being demanded by the law and evidence the trial judge did not abuse his discretion in granting a first new trial. Johnson v. Georgia R. Bkg. Co., 102 Ga. 577 ( 27 S.E. 681); Weinkle Sons v. Brunswick W. R. Co., 107 Ga. 367 (1) ( 33 S.E. 471); Shirley v. Swafford, 119 Ga. 43 (2) ( 45 S.E. 722).
Judgment affirmed. Felton, C. J., and Nichols, J., concur.