Opinion
19449.
ARGUED SEPTEMBER 10, 1956.
DECIDED OCTOBER 29, 1956.
Habeas corpus. Before Judge McGehee. Fayette Superior Court. June 22, 1956.
Fraser Shelfer, for plaintiff in error.
Howard Handley, contra.
The order of the trial judge, requiring the plaintiff to execute a bond conditioned upon his returning the children to the defendant in the State of Georgia, was not in any sense a modification of the decree of the District Court of the State of Idaho. The decree upon which he relies requires that he pay their transportation and return the children to the defendant in the State of Georgia. The requirement as to the bond, under the facts of this case, was solely within the discretion of the trial judge. Pruitt v. Butterfield, 189 Ga. 593 ( 6 S.E.2d 786); Good v. Good, 205 Ga. 112, 115 ( 52 S.E.2d 610).
Judgment affirmed. All the Justices concur, except Wyatt, P. J., not participating.
ARGUED SEPTEMBER 10, 1956 — DECIDED OCTOBER 29, 1956.
Jerry Soderburg filed a petition for habeas corpus against Betty Soderburg, in which it was alleged: A decree of divorce was entered between the parties in the Tenth Judicial District of the State of Idaho on November 17, 1955. The "decree awarded the custody of Linda Gail Soderburg and Amy Dianne Soderburg, minor children of the parties, to the defendant herein, but further provided that petitioner `is awarded custody of said children for a period of 60 days each year during the months of June, July and August.'" The plaintiff has demanded the children of the defendant, and she refuses to comply with the terms of the decree, and is illegally detaining the children.
The defendant filed an answer admitting the decree of the Idaho court, but alleging that the cause was appealed to the Supreme Court of Idaho, and that there had been no final determination of the cause. Her answer contained other allegations, and she prayed that custody of the children be remanded to her; and that, if the court should award custody of the children to the plaintiff for 60 days, he be required to give bond conditioned on the return of the children at the expiration of the period of 60 days.
The decree of the District Court of Idaho, upon which the plaintiff relies, awarded custody of the children to the defendant, and provided further that "she is given the express right to take the children out of the State of Idaho and to the home of her parents in Georgia, provided, however, that the defendant and cross-plaintiff is awarded custody of said children for a period of sixty (60) days each year during the months of June, July, and August provided that he pays for the cost of the full round-trip transportation and care of said children from Georgia to Idaho and back to Georgia."
The trial judge, at the conclusion of the hearing, entered an order in which he recited that there was evidence that the plaintiff might not comply with the decree of the District Court of the State of Idaho, in that he might not return the children to the defendant after the expiration of 60 days, and it was therefore ordered that the plaintiff give bond in the sum of $5,000, payable to the defendant, conditioned on his returning the children to her custody within 60 days from the date of the filing of the bond.
The plaintiff excepted to that part of the order requiring a bond, on the ground that it was contrary to law and was, in legal effect, a modification of the decree of the Idaho court.