McCallum v. McCallum, No. 3956

No. 3956 | Ga. | Mar 13, 1924

Lead Opinion

Atkinson, J.

1. Where a wife institutes an action against her husband for divorce and permanent alimony on the ground of cruel treatment, and applies for temporary alimony pending the suit, on the hearing of the application for temporary alimony the presiding judge, in 'his discretion, may refuse it altogether on conflicting evidence as to cruel treatment; or if there is a minor child, he may award an amount for the support of the child, and refuse to award alimony for the wife. Civil Code (1910), § 2979; Coley v. Coley, 128 Ga. 654 (2) (58 S.E. 205" court="Ga." date_filed="1907-07-11" href="https://app.midpage.ai/document/coley-v-coley-5575891?utm_source=webapp" opinion_id="5575891">58 S. E. 205); Brisendine v. Brisendñne, 152 Ga. 745 (3) (111 S.E. 22" court="Ga." date_filed="1922-02-17" href="https://app.midpage.ai/document/skellie-v-skellie-5583844?utm_source=webapp" opinion_id="5583844">111 S. E. 22). Applying the above principles, it cannot be held that the trial judge abused his discretion in denying temporary alimony to the wife.

No. 3956. March 13, 1924.

2. In all cases where the custody of any minor child or children is involved between the parents, there shall be no prima facie right to the custody of such child or children in the father, but the court Hearing such issue of custody may exercise its sound discretion, taking into consideration all the circumstances of the case, as to whose custody such child or children shall be awarded; the duty of the court being in all such eases, in exercising such discretion, to look to and determine solely what is for .the best interest of the child or children, and what will best promote their welfare and happiness, and make award accordingly. Civil Code § 3022(a); Turner v. Turner, 150 Ga. 191 (103 S.E. 413" court="Ga." date_filed="1920-05-13" href="https://app.midpage.ai/document/turner-v-turner-5583072?utm_source=webapp" opinion_id="5583072">103 S. E. 413).

3. Under the pleadings and evidence the judge did not abuse his discretion in awarding the custody of one child to the father.

Judgment affirmed.

All the Justices eonour, except Ernes, J., dissenting. R. I. Stephens and C. A. Cunningham, for plaintiff. Jordan & Moore, for defendant.

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Dissenting Opinion

Hines, J.,

dissenting. I dissent from so much, of the opinion, of the majority of the court in this case as affirms the judgment of the court below awarding the possession of the child, J. W. McCallum Jr., to the father. This child was only 19 months old at the date it was taken from the mother and given to the father. I think the trial judge abused his discretion in taking a child of such tender age from the mother, who was not shown to be in any way unfit to care for and nurture it. I think the best interest of any child of such age will be subserved by giving the same to its mother, certainly until it should reach a more mature age. “Unless there are very controlling reasons to the contrary in a particular case, the mother is the proper custodian of infants of the age of those now-in controversy.” Payne v. Payne, 39 Ga. 174, 177.