153 Ga. 202 | Ga. | 1922
Robert E. Woodland and Florence Linder Woodland were married in January, 1917, at Tampa, Florida. Two children were born of this marriage, a boy, John Gayton Woodland, in December, 1917, and Margaret Means Woodland, a girl, was born June 13, 1919. The plaintiff and the defendant lived together as husband and wife until March, 1920, when they separated. The controversy in the present case is over the possession and custody of the two children. It appears from the record that while the children were in the custody of their mother at her home at Cape May, New Jersey, they were kidnapped and taken from their mother on July 7, 1921. After a period of search the boy was located in a boarding-house in the city of Atlanta, where he had been placed by his father. The mother filed a petition for habeas corpus against her husband, seeking to recover the custody of the minor son. Subsequently to the filing of this suit and before the trial of the case the mother, by the aid of detectives, located the girl in the possession of two people living in Battery Park, Virginia. She went to Virginia, secured possession of the minor, and brought her to Atlanta, where the husband filed his petition for habeas corpus against his wife for the custody of the little girl. In his petition, and also in his answer to the petition of Mrs. Woodland, Mr. Woodland, the husband, claimed the right to the custody of both children under a decree of a Florida circuit court, a copy of which was set out in the brief of the evidence. Both of these cases, involving the same issues, were tried together by Judge Pendleton of the superior court of Fulton Count}', who, after hearing evidence and argument in the case, awarded the custody of both children to the mother. To each of these judgments the plaintiff in error excepted on what amounts to the usual general grounds, and also upon the ground that the trial court did not give full weight and credit to the decree of the Florida court which had awarded the children to the father, — the .mother not having been present at the trial, and having left the State taking the children with her. The cross-bill of- exceptions assigns error on allowing the decree of the Florida court in evidence upon various grounds. In the view we take of this case the controlling question is, whether the judgment of the lower court awarding the children
In the case of Milner v. Gatlin, 139 Ga. 109 (76 S. E. 806), it was held: “ A decree of divorce in another State, in which the custody of the child is awarded to the father, is conclusive as between the parties to the decree as to his right and fitness for such custody at that time, but is not conclusive for all time. In a subsequent proceeding by habeas corpus for the possession of the child, between the parties to the decree, evidence as to the unfitness of the father will be confined to matters transpiring subsequently to the decree.” In Milner v. Gatlin, 143 Ga. 816 (85 S. E. 1045, L. R. A. 1916B, 977), Presiding Justice Evans, delivering the opinion of the court in a case somewhat similar in its facts to the present case, said: “The act of 1913 provides that in all cases of contest between the parents of children, for their custody, ‘ 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 cases, 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.’ This enactment applies to situations growing out of the domestic relation of husband and wife, as unaffected by any final divorce proceeding. Where there has been a’ divorce decree, in which disposition of the child has been made, that decree (where it is not successfully attacked for fraud in its procurement, under circumstances above pointed out) is binding on the parties, so as to conclude their respective rights to the custody of the children at the time of its rendition. As to conditions subsequently occurring, the judge of a habeas-corpus court has full discretion in awarding the custody of the child, and in the exercise of such discretion he may look to the circumstances relating to the child’s ordinary comfort and contentment, its intellectual and normal development, and award the custody to either of the parents, according as it may be to the best interest of the child.”
In the instant case there had been no decree of divorce in the Florida court or elsewhere, so far as the record discloses. But
There was other evidence showing that during the few months that the father had the custody of the little boy, who was about four years old, he kept him in a boarding-house in Atlanta on South Ashby street, and none of the people with whom they boarded were related to him. On the trial of the case .the father testified that if the children were awarded to him he could place them in this boarding-house in Atlanta, and that that was the only home he could offer them. He also testified that he had no property, real or personal, except a few hundred dollars, and that he had no income except his salary as a ticket-seller at the terminal station in Atlanta; and he also stated that if he should become too
Hnder this evidence, including the decree from the circuit court of Florida as applied to the ruling in the Milner case, supra, we think that the court below did not err in awarding the children to the mother. In habeas-corpus cases the trial judge has a wide discretion, within legal limits, as to the custody of minor children, the paramount consideration being the welfare and happiness of the minor. Lamar v. Harris, 117 Ga. 993 (44 S. E. 866); Hammond v. Murray, 151 Ga. 816 (108 S. E. 203); Hollenbeck v. Glover, 128 Ga. 52 (3) (57 S. E. 108). In view of the whole record and the evidence in this case we are of the opinion that the court did not abuse his discretion in awarding the children to the mother.
The court allowed in evidence, over objection, a copy of the decree of the circuit court of Florida awarding the children to the father; and we can not say that the trial court did not give full faith and credit due to that decree, as contended by the plaintiff in error. In view of the ruling made in the case of Milner v. Gatlin, 143 Ga. 816 (supra), and of the evidence in this case showing that the status of the children had materially changed subsequently to the rendition of the decree in the Florida case, we are of the opinion that the court did not err in awarding the children as he did. In the above view, it is unnecessary to consider the question as to whether or not the decree in the Florida case was null and void for the reasons assigned by the defendant in error in the cross-bill of exceptions.
Judgment affirmed on both main bills of exceptions. Gross-bills dismissed.-'