Wright v. Sanford

243 Ga. 252 | Ga. | 1979

Per curiam.

The Wrights appeal from a denial of their in-term motion to set aside a default judgment entered against them in this child custody habeas corpus case.

Ms. Sanford signed a document wherein she purported to assent to the adoption of her new-born child by the Wrights. Thereafter, she changed her mind and demanded return of the child. The Wrights had employed an attorney to handle the adoption. He did nothing to secure adoption of the child by the Wrights. Ms. Sanford brought a child custody habeas corpus proceeding against the attorney, demanding disclosure of the names of the Wrights and return of the child. The Wrights’ attorney failed to file any responsive pleadings, and the trial court ordered disclosure of the Wrights’ names. Ms. Sanford thereafter amended her complaint by naming the Wrights as defendants. The Wrights were served with process. Again, no responsive pleadings were filed by the attorney for the Wrights.

Argued January 10, 1979 Decided February 27, 1979 Rehearing denied March 6, 1979. . Smith, Shaw, Maddox, Davidson & Graham, John M. Graham, III, Groze Murphy, Jr., C. Wade Monk, II, for appellants. Gammon & Anderson, Joseph N. Anderson, Jack Kent, Jr., for appellees.

The trial court held that the Wrights were in default and granted default judgment, awarding the child to its natiiral mother, Ms. Sanford, without conducting a hearing and making a decision as to the validity and effect of the document signed by Ms. Sanford.

The Wrights then obtained new counsel who filed an in-term motion to set the judgment aside. The motion was denied by the trial court based upon a holding that default judgment can be entered in a child custody habeas corpus case.

Judgment cannot be taken by default in actions involving the custody of minor children; rather, the allegations of the pleadings shall be established by evidence. Code Ann. § 30-113. See Duncan v. Harden, 234 Ga. 204 (214 SE2d 890) (1975).

Judgment reversed.

All the Justices concur.