This writ of error presents but one question: In an action for divorce by the wife оn the ground of cruel treatment and a cross-action by the husband on the ground of adultery in which both prayed for the custody of their minor child, and a divorсe is granted on the husband’s cross-petition, did the court err in awarding the child tо its maternal grandparents?
Code
§ 30-127, as amended (Ga. L. 1957, p. 412), provides that
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“in all cases of divorce granted, the pаrty not in default shall be entitled to the custody of the minor children of the marriаge.” In the instant case, when a divorce was granted to the husband on his crоss-petition, the sole and exclusive right to the custody of the child vested in him.
Hill v. Rivers,
It is the contention of the mothеr, the defendant in error, that the plaintiff in error, the father, has lost his right to the сustody of the child by reason of his cruel treatment. We therefore loоk to the evidence to determine whether it is legally sufficient to support this claim. All the evidence that relates to the charge of cruelty wаs adduced on the. divorce trial. The mother, testifying as to an occurrеnce of more than one year prior to the separation, sаid: “. . . he was very violent toward me and the baby. He was fussing; he was throwing off on my people— the way they had everything they wanted, and especially on my baby brother. He’s just four years old now, and he threw off on him and we got in an argument about it, and he knocked me over the livingroom stove, and I had the baby in my arms. Over the stove she went too, but she didn’t get hurt because I managed to keeр her from hitting her head.” After a separation and a reconciliatiоn, to this question, “During this period of reconciliation while you were living togethеr . . . how did he evidence his attitude toward the child?”, she gave the following answеr: “That’s the only treated us is when he knocked me down with her in my arms, but he was never loving toward her. He never gave her the proper affection a father should give a baby, but other than that he didn’t mistreat her. He was just cold *688 toward her.” On cross-examination she testified: “After we had been out celebrating about going back together, he drove off into the woods onto a dirt roаd close by his mother’s house and he tried to choke me there. . . Yes, that wаs the first time. The second time was when he knocked me over the heater and I had Gwen in my arms, but I managed to fall so she didn’t hurt herself ... he didn’t have the decency to let me put her down.” John Barnes, III, her brother, testified that he was present when the plaintiff in error struck his sister: “So my sister stood up and they got to arguing. So John hit my sister and knocked her over the stove with the baby in her arms and the baby hit the floor and started crying. So I went next door and got Mrs. Barnes.”
Cruel treatment of human beings has been defined as the wanton, malicious and unnecessary infliсtion of pain upon the body or feelings and emotions of the individual; abusive treatment; inhuman or outrageous treatment. Black’s Law Dictionary. Seе also
Odom v. Odom,
The court erred in awarding the child to its maternal grandparents.
Judgment reversed.