Defendant alleges in his plea of res judicata that this action is barred by the holding of this court m
Barnes v. Barnes,
“While the judgment fixing custody of children where a divorce is granted is conclusive between the parties and the principle of res judicata is applicable, where a petition is brought in the nature of a habeas corpus, alleging material changes of circumstances substantially affeсting the interest and welfare of the children, such proceeding is an independent one and is not an effort to modify the original decree.”
Stephens v. Sudderth,
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Defendant urges that his renewed demurrer to the pеtition should have been sustained since, where there is no cause of action at the commencemеnt of a suit, there can be no recovery,
(Wadley, Jones & Co. v. Jones,
The record discloses no objection by the defendant to the amendment. Instead, he merely renewed his demurrer to the petition. When the defendant failed to object, the question raised by the renewal of the demurrer was simply whether the petition as amended set forth a cause of action.
Aycock v. Williams,
The defendant further asserts that the plaintiff failed to allege a change of condition materially affecting the children’s welfare, and hence set forth no cause of action.
Code Ann.
§§ 30-127 and 74-107 expressly state that the party nоt in default, where a divorce is granted, shall be entitled to custody of the children. The court, however, may loоk into all the circumstances of the parties, including the improvement of the health of the party seeking a change in custody provisions, and, after hearing both parties, make a different disposition of the children, exercising such discretion to look to and determine solely what is for the best interest of the child or children. See
Pruitt v. Butterfield,
From a careful perusual of the rеcord, there appears to be some conflict of evidence. The trial judge’s province was to
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determine the weight and credence to be accorded the proof submitted by each party.
Smith v. Bragg,
In questions of custody the judge has a wide lаtitude and discretion in determining what is in the children’s best interest, welfare, and happiness.
Hammond v. Murray,
In' cases of constructive conterilpt of court, where the alleged contumacious conduct is disobedience to a mandate of the court, not an act in thе presence of the court or so near thereto as to obstruct the administration of justice, the law rеquires that a rule nisi issue and be served upon the accused, giving him notice of the charges against him, and that he be given an opportunity to be heard.
Mendel v. Mendel, 202
Ga. 675 (
The notice given by the rule nisi is to afford the accused a reasonаble time in which to prepare his defense to the charge that he had violated the court’s order. It was еrror, in the case we now reviéw, for the judge, over the timely' objection of the accused, to summarily hear еvidence and find him guilty of contempt for failure to abide by ■ the court’s previous order, when no rule nisi had issued, and thе defendant was not given notice, prior to the hearing, that he would be called upon to show that 'he had' not disobeyed the previous order of the court, or to show legal excuse for Shis conduct.
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Where the mothеr of minor children seeks to gain their custody by showing a change of condition affecting the children’s welfare, аnd there are no pleadings or prayers for relief in respect to alimony or support for the childrеn, and it does not appear that in the divorce suit or alimony action, previously pending between the parties, a decree reserved in the court the right to amend the same as to alimony, the judge is without authority to award alimony for the support of the minor children.
Fricks v. Fricks,
The judgment of the court in the instant case was error in so far as it undertook to require the defendant, father of the children, to pay alimony for their support. Here no question is involved as to whether the mother may in one action seek to gain custody of the children and also obtain judgment requiring the father to furnish money for the children’s support, since the pleadings in the case did not present the latter issue.
Judgment affirmed in part and reserved in part.