15 S.E.2d 514 | Ga. | 1941
1. The court did not err in awarding the custody of the children to the father.
2. It was not error, in a proceeding of this character, for the judge to exclude the parties while the children were testifying.
3. There is no merit in any of the assignments of error.
1. In cases between parties involving the custody of their minor children, the rule is established that the judge exercises a sound legal discretion, looking to the best interest of the child or children, and that this court does not interfere with his judgment unless that discretion appears to have been abused. Code, §§ 30-127, 50-121, 74-107; McDowell v. Gould,
It is further insisted, that in August, 1938, the parties appeared before the judge for the purpose of having a hearing on the mother's petition filed in the previous month, seeking restoration of the custody of her children; that, without the hearing being held, the father consented to her taking the children; and that she did so with the knowledge and approval of the judge, and, with the exception of nine months in 1939 and 1940 while they were away at school under a consent order passed by the judge, they lived with her until the latter part of August, 1940, when they left her and went to the home of their father. As we understand it, counsel's argument in this connection is in substance that this action of the judge permitting the mother to take the children, and her custody of them thereafter for approximately two years, should be taken as equivalent to an order abrogating the judgment entered in November, 1935, under which the father was entitled to their custody, and awarding the custody of the children to the mother, so that under the doctrine of res judicata the judge was bound to award the children to her unless a material change of circumstances since that time was shown, which it is asserted was not done. In this connection the testimony of the judge before whom the matter was then pending, and that of the father, corroborated by counsel who represented the mother at that time, shows that there was no final agreement or order giving the mother the permanent custody of the children, but that she was merely permitted to take them until the matter might thereafter, and at a more favorable time for all the parties, be finally disposed of. The judge testified, that he did not make any ruling as to the custody of the children, and that he did not intend that the matter be finally disposed of in favor of the mother, but that he considered it the best course, under the circumstances as they existed at that time, to make no final disposition of the matter; and further, that if he had been presented with an order awarding the custody of the children to the mother he would have declined to sign it, and had in fact declined, in July, 1940, to sign an order nunc pro tune as of the time of such hearing in 1938, awarding the children to the mother, which was presented to him by counsel now representing the mother. In *408 view of these facts the argument of counsel can not be upheld. This disposes of the contention that there had been such a voluntary surrender of the children by the father to the mother as would be binding under the Code, § 74-108(1). Even had it appeared that the judge awarded the custody of the children to the mother at the hearing in 1938, so that an award could not be made to the father except upon new and material circumstances substantially affecting the best interest and welfare of the children, we could not say that his judgment was unauthorized. We do not deem it needful to discuss the evidence. It appears clear to us that the judge has not abused his discretion.
2. Complaint is made of the action of the judge in excluding the parties from the court-room while the children were testifying. It appears that the children were present at the instance of the judge, and were examined by him. Counsel for the mother was given the privilege, and did examine them. It is true that parties as a general rule have the right to be present at all stages of the trial. 2 Rawle C. L. 1014, 1015; St. Paul Fire Marine Insurance Co. v. Brunswick Grocery Co.,
We find no error in any of the assignments of error.
Judgment affirmed. All the Justices concur. *409