Opinion
19489.
ARGUED OCTOBER 8, 1956.
DECIDED NOVEMBER 17, 1956.
Habeas corpus. Before Judge Crow. Grady Superior Court. July 28, 1956.
Lippitt Lippitt, for plaintiff in error.
S.P. Cain, Cain Smith, contra.
1. "This court has many times held that an order awarding custody of a minor child following the grant of a divorce is final, and the use of such words as `subject to the further order of court' does not deprive it of its conclusiveness. Fuller v. Fuller, 197 Ga. 719 ( 30 S.E.2d 600)." Goodloe v. Goodloe, 211 Ga. 894, 897 ( 89 S.E.2d 654).
2. "The agreement of the parties for the court to retain jurisdiction of the question of custody, which became the judgment of the court, is no more than the judgment of the court." Goodloe v. Goodloe, supra.
3. Where a divorce decree is entered, granting the parties a divorce, and the court enters an award granting custody of a minor child to the paternal grandmother, the award of custody being based upon an agreement between the child's parents which was made the judgment of the court, the order fixing custody is a final judgment and is conclusive between the parents upon the facts then existing. The award is not deprived of its finality because the agreement, in addition to providing that custody should be granted to the grandmother, provided that, in the event a divorce was granted, such divorce judgment should not affect the rights of either parent to said child. "Where children are involved in the granting of a divorce decree, it is the duty of the trial judge to award their custody. Where by decree an award is made asserting it to be `for the present,' with a further provision that `this court retains jurisdiction for the purpose of determining permanent custody of the children,' such will not divest the award of its finality." Burton v. Furcron, 207 Ga. 637 ( 63 S.E.2d 650).
4. Where the trial court awarded custody of a minor child to the grandmother at the time of the grant of a divorce to the parents, such an award fixed the legal right to the custody of the child in the grandmother. That award is res judicata on the facts then existing, and thereafter the trial court may exercise a discretion as to who should have custody of the child only so far as there are new and material conditions and circumstances which substantially effect the interest and welfare of the child. Willingham v. Willingham, 192 Ga. 405, 406 ( 15 S.E.2d 514). The undisputed evidence in this case shows that the grandmother is a fit and proper person to have custody of the child, and that the child is being well provided for, is being sent to school and to church, and is being reared under excellent physical and moral conditions. The evidence offered by the mother was to the effect that she is in better condition to take care of the child now than when custody was originally awarded, and that she and her husband are financially and otherwise capable of taking care of the child. These facts do not show a change in conditions and circumstances materially affecting the interest and welfare of the child, and there was no error in denying the prayers of the petition. Shields v. Bodenhamer, 180 Ga. 122 ( 178 S.E. 294); Carney v. Franklin, 207 Ga. 39 (2) ( 59 S.E.2d 909), and cits; Broome v. Broome, 212 Ga. 132, 134 ( 91 S.E.2d 18).
Judgment affirmed. All the Justices concur, except Wyatt, P.J., not participating.
ARGUED OCTOBER 8, 1956 — DECIDED NOVEMBER 17, 1956.
Mrs. Mary Pearce Young brought a petition for habeas corpus against Mrs. Floyd E. Pearce alleging that Kenneth Pearce, Jr., son of the plaintiff and grandson of the defendant, is being illegally detained. The defendant filed defensive pleadings, in which it was alleged: that the plaintiff and the child's father were divorced in 1950; prior to the divorce, the parties thereto had entered into an agreement which reads in part as follows: "That whereas the above stated parties are husband and wife, but are now living in a bona fide state of separation, and desire to enter into an amicable agreement with respect to the custody of their little six-year-old child, Kenneth Pearce, Junior. Now therefore, it is agreed as follows, to wit: (1) That both parties contemplate that said state of separation will continue, and it is agreed by both parties, father and mother, husband and wife, that the said child, Kenneth Pearce, Junior, now six (6) years of age, shall remain with the grandmother, Mrs. Floyd E. Pearce, of Grady County, Georgia, until the further order of the Superior Court of Grady County, Georgia, and the Superior Court of Grady County, Georgia, is to retain jurisdiction for such further orders as might be to the interests of said child. The grandmother to educate and care for the child at the expense of the grandmother during the time the said child remains with his grandmother. (2) Both and each, mother and father, shall have the right to visit with the child, and have the child to visit with them, and each of them, at reasonable times, and when not in school. . . (4) . . . It is agreed that in the event a divorce is granted either or both parties that the same shall not prejudice the rights of either party to this agreement, nor shall it be considered by either party as a judgment affecting the rights of either party to said child. (5) In consideration of the grandmother supporting and educating said child, and properly caring for said child, the mother waives any right to alimony and support for herself"; that a judgment was subsequently entered granting a total divorce between the parties, said judgment reading in part as follows: "The question of the custody of the minor child and alimony has been settled by the parties and approved by the Judge of the Superior Court of Grady County, Georgia, on August 7, 1950. A copy of said agreement hereto attached, marked Exhibit `A', and made a part of this decree, and is again considered, ordered, approved and decreed as the judgment of the court in said case."
The petitioner contends (1) that the judgment was temporary as to custody of her child because of that part of item 4 of the agreement which reads: "It is agreed that in the event a divorce is granted either or both parties that the same shall not prejudice the rights of either party to this agreement, nor shall it be considered by either party as a judgment affecting the rights of either party to said child"; and, inasmuch as the child's father died in 1951, the legal right to custody is in her; and (2) that the conditions of her home life have materially changed since the rendition of the judgment, which is a circumstance materially affecting the welfare and best interests of her child.
After hearing evidence, the trial court denied the prayers of the petition, and to this judgment the petitioner excepts.