55 S.E.2d 152 | Ga. | 1949
1. While in a divorce action the decree awarding custody of a minor child of the parties, without any reservation of jurisdiction, is final and conclusive, and cannot, by reason of facts or conditions subsequently transpiring, be amended or modified after the term, affecting the merits on the facts then existing (Richards v. McHan,
2. The petition in the present case, alleging misconduct upon the part of the defendant, affecting the welfare of the child, since the award of its custody to her in an action of divorce, and praying that the custody be awarded to the petitioner, but not seeking to modify the original *762 decree in respect to the facts on which it was based, as contended by the plaintiff in error, was not subject to the general demurrer.
3. Where in a plea of res adjudicata it was alleged, with exhibits of former pleadings and decree attached, that the present charges of misconduct upon the part of the defendant since the award of its custody to her in the original divorce action had been adjudicated adversely to the petitioner by a decree entered on August 11, 1947, but such misconduct was alleged to have occurred in the years 1948 and 1949, the court did not err in not sustaining the plea in its entirety but only as to any misconduct prior to the rendition of the decree on August 11, 1947.
Judgment affirmed. All the Justicesconcur.
The defendant filed an answer denying the substantial allegations of the original petition. The defendant also filed general and special demurrers to allegations of the original petition, which were met by an amendment. The defendant also filed a plea of res adjudicata as follows: A judgment was rendered on August 11, 1947, in the said court in favor of the defendant on the same cause of action between the same parties, a copy of the pleadings and judgment being attached to the plea and made a part thereof. The said judgment was a full and final adjudication of the cause of action now sued upon. It was prayed that the plea be sustained and the petition be dismissed. *764
After the petition had been amended the defendant renewed the original demurrers and added the following general grounds of demurrer: 1. The petition fails to set forth any cause of action against the defendant. 2. The decree entered by the court on August 12, 1946, granting a divorce, the custody of the child permanently awarded to the defendant here, and alimony awarded in the sum of $30 for the support of the child, was conclusive and final between the parties and cannot be amended or modified. 3. The court is without power to change or modify the decree in any respect. 4. The court is without authority or jurisdiction, for the reason that the term at which the final decree of August 12, 1946, was entered had been adjourned by operation of law, and there was nothing in the decree which gives the court any authority to modify or change the said final decree in any respect.
The court sustained the plea of res adjudicata only as to all matters, charges, or allegations against the defendant prior to August 11, 1947, the date which, as the order of the court recites, the issues involved in a petition by the former husband against the former wife as to the custody of the said child were passed upon adversely to the petitioner and custody of the child was denied to him.
The court also overruled the renewed demurrer, and thereafter on a hearing entered a decree fixing the custody of the child, each party to have the custody at stated respective intervals, until the further order of the court.
The exceptions are to the judgment in not sustaining the plea of res adjudicata in its entirety, and to the judgment overruling the renewed demurrer.