Opinion
21182.
ARGUED MARCH 13, 1961.
DECIDED APRIL 6, 1961.
Custody of children. Chatham Superior Court. Before Judge Heery.
John J. Sullivan, for plaintiff in error.
John C. Wylly, Lewis, Wylly Javetz, contra.
Where the evidence is in conflict as to whether subsequently to a divorce decree awarding custody of minor children to their father, there has been a change of conditions materially affecting the children's welfare, the judgment remanding their custody to the father will not be disturbed.
ARGUED MARCH 13, 1961 — DECIDED APRIL 6, 1961.
On September 30, 1954, a divorce decree entered in Chatham Superior Court dissolved the marriage of Adele Long and Thomas W. Long, and awarded the custody of the children of the marriage, Sally and Thomas, to Mr. Long. On November 4, 1960, the plaintiff, who had married Hugh Strickland, filed in the same court a petition against Mr. Long seeking to obtain modification of the decree of divorce in respect to the custody of the children. The petition set forth the fact of the plaintiff's marriage to Mr. Strickland; that she had become financially able to support the children; that she had a comfortable home in Statesboro, Georgia; and that it would be to the best interest of the children that their custody be awarded to her. It was further related that the children had attained the respective ages of eight and eleven years. The petition alleged that since the entry of the award of custody on September 30, 1954, there had been changes of conditions materially affecting the children's welfare, in that, since the date of the award of the children to the defendant, the father had been keeping the company of one Martha Veal and had spent the entire night with her while the two children were present. On August 25, 1960, the defendant and Martha Veal fraudulently registered at a motel in Daytona Beach, Florida, under the name of Mr. and Mrs. T. W. Long of 1502 East 37th Street, Savannah, Georgia. A juvenile counselor of Volusia County, Florida, investigated and found Mr. Long and Martha Veal sleeping in the same room along with the defendant's children and Martha Veal's daughter.
Mrs. Strickland testified on the hearing of the case that she and her husband, Hugh Strickland, owned a comfortable six-room house situated on sixty acres of land near Statesboro, and that this home would afford a wholesome environment in which to rear the children. However, on cross-examination she admitted that she had instituted a suit for divorce against Mr. Strickland in Bulloch Superior Court on June 20, 1960, in which her sworn petition charged him with cruel treatment of her and habitual drunkenness in the following language: "That, notwithstanding this, plaintiff has been forced to separate from defendant because of a constant course of cruel and inhuman treatment inflicted upon her, wilfully and intentionally. That said cruel treatment has consisted of habitual and constant excessive use of intoxicants by the defendant to such an extent that it has destroyed his reason and has caused him to nag, fuss at and abuse the plaintiff, and that the defendant has repeatedly resorted to physical violence upon petitioner, culminating in violent assaults and beating of the plaintiff, and which has been endured by the plaintiff practically the full time of the marriage life of the plaintiff and defendant. That on the night of June 15, 1960, the defendant did assault and beat petitioner, by knocking her down with his fist, bruising her left eye, her arms and legs, and then by mutilating her face by violent scratches and lacerations, thereby disfiguring her physical appearance, resulting in her being confined in the Bulloch County Hospital for treatment for said injuries, said confinement being on the night of June 15, 1960." She denied that the allegations of the petition were altogether true and that her husband was, as a matter of fact, constantly cruel to her or constantly intoxicated. She offered as an explanation of the matter that her husband came home on the evening of June 15, 1960, drinking and in the course of an argument that ensued she slapped him and he slapped her; that she was angry and reported the incident to the police; that she spent the night in the hospital because of nervous tension. Mrs. Strickland further testified that she was distressed about the custody of the children and certain illness in her family. She had become at the time of the incident very irascible and difficult to live with; that the trouble between her and her husband was her fault. She was questioned as to her husband's reputation to which she replied, "I don't know what kind of reputation he has"
Two Daytona police officers testified on behalf of the plaintiff that, at the behest of her counsel on August 25, 1960, they investigated the report that Mr. Long and Mrs. Veal were occupying a room at a Daytona Beach motel; that they found the couple registered at the motel as husband and wife; that, when they went to the room, Mr. Long requested that they allow him to dress before opening the door; that, when they were admitted to the room, Long was clothed only in Bermuda shorts, and Mrs. Veal was lying in bed with a child and was not covered by bed clothes. The officers testified that Thomas Long first claimed that he was married to Mrs. Veal, but upon being questioned he admitted that she was his girl friend. They related that they threatened to arrest the couple on morals charges, but actually made no arrest. These officers admitted that in another bed in the room was a small boy and sleeping on a couch was a little girl.
Mr. Long admitted having registered in the motel with Mrs. Veal as husband and wife, but he testified that the room was used by him and Mrs. Veal together with their children as a matter of economy. He positively asserted that Mrs. Veal and her daughter occupied one double bed in the room while he and his son occupied another and his daughter slept on a couch. He denied that he was in the room when the officers arrived and explained that he had left the room in quest of a place where he could procure cigarettes. He testified that he was accosted by the officers when he was out of the room. His testimony was that he opened the door at the officers' request but could not remember whether Mrs. Veal was in bed at the time or whether she was covered by bed clothes. He was positive that he did not protest to the officers that he and Mrs. Veal were married, and he denied that they threatened to arrest him or Mrs. Veal. Mr. Long further testified that, at the time of the incident, he and Mrs. Veal were contemplating marriage and subsequently were married. He denied that anything of an immoral or unlawful nature occurred on the night in question.
Mrs. Long, formerly Mrs. Veal, corroborated her husband's testimony in every particular, and she testified that she was not in bed when the officers came to the room, and that when she greeted them she was clothed in pajamas and a long robe.
A number of witnesses testified that Mr. Thomas Long was a good hard working man; that his home was well ordered, and that he and his present wife took good care of the children.
The trial court denied the plaintiff's prayer for custody, and the plaintiff excepted to that judgment.
Where a divorce decree dissolves the marriage of minor children's parents and awards their custody to the father, the same is final, and the mother can obtain a modification of its provisions as respects custody only by showing a subsequent change of conditions substantially affecting their welfare. Elders v. Elders, 206 Ga. 297 ( 57 S.E.2d 83); Herring v. Herring, 208 Ga. 146 ( 65 S.E.2d 584).
The evidence was in sharp conflict as to the behavior of Mr. and Mrs. Long at Daytona Beach prior to their marriage. The plaintiff's evidence, if believed, would have supported the conclusion that on the occasion in question, the couple were guilty of conduct so indecent and shameful as to cast a grave shadow upon their fitness to rear the children. On the other hand, the proof submitted by Mr. Long, if accepted as true, refuted all implication of indecent or improper conduct on the part of the couple while in Daytona Beach, furnished a complete denial of the accusations made against them, and satisfactorily explained their behavior, showing it to be moral, lawful, and entirely innocent.
It was the province of the trial judge to weigh the evidence and give credence to the version that appeared to him most plausible. Hicks v. Buffington, 209 Ga. 719 ( 75 S.E.2d 560). The evidence adduced upon the trial being in conflict as to whether, subsequently to the decree, there had been a material change of conditions substantially affecting the welfare of the children, the trial judge cannot be held to have erred in remanding their custody to the defendant.
Judgment affirmed. All the Justices concur.