The exception here is to a judgment of the Superior Court of Wilcox County, awarding the custody of two minor children to the mother. It is contended by the father that the judgment was contrary to the law and the evidence because the children named in his petition for the writ of habeas corpus *58 had been previously awarded to him by a judgment of the Superior Court of Glynn County, rendered March 25, 1945, based on a habeas corpus proceeding against the mother, and that such judgment was res judicata on the question of custody, since the evidence introduced at the present hearing failed to show such a change in condition of the parties as would authorize the subsequent change of custody. The first habeas corpus proceeding was instituted by the father a few days after the mother’s action for divorce was dismissed. Prior thereto the parties had lived in a state of separation for approximately 18 months. A few days after the judgment was rendered in the habeas corpus proceeding, the parties resumed marital relations. They then resided in several different cities before moving to Thomaston, Georgia, in May, 1946. There they lived in a trailer camp and worked at a cotton mill. The father’s hours at the mill were from four o’clock p. m. until midnight, and the mother’s from midnight until eight o’clock a. m. They lived and worked under these conditions until September, 1946, when the mother took the two children to the home of her mother in Wilcox County, Georgia. She testified that her husband was quarreling and told her to leave. The father testified that she left while he was asleep and that he did not know where she was until he later received a wire from her; that his letters were unanswered, and he went to see his family on Christmas Eve, 1946, and while there his wife attempted to have him indicted for kidnapping and swore out a warrant for abandonment. By agreement of the parties the husband then began to pay $30 every two weeks for the support of the children, and continued the payments until August, 1947. The abandonment charge was renewed and all back payments were then made up, and a nolle prosequi was entered on the indictment. A third child was born in April, 1947, for whom no extra allowance has been made by the father. The mother testified that she and the children are now living with her mother on a farm, and that the oldest child attends school regularly; that the children are in good health and “getting on good.”
In a habeas corpus proceeding involving a contest between parents over the custody of minor children, the paramount issue is the welfare and best interest of the children, and an award
*59
made by the judge, based upon the evidence and in the exercise of a sound discretion, will not be controlled by this court. Code, §§ 50-121, 74-106, 74-107;
Lamar
v.
Harris,
117
Ga.
993 (
In the present case, the evidence was amply sufficient to show such a material change in circumstances substantially affecting the welfare and best interest of the minor children as would render the judgment awarding the custody of the children to the father in the initial habeas corpus proceeding inconclusive on the parties, and the judge did not abuse his discretion in awarding custody of the children to the mother.