Summary
In Burton v. Furcron, 207 Ga. 637 (63 S.E.2d 650), this court said: "Where children are involved in the granting of a divorce decree, it is the duty of the trial judge to award their custody.
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17336.
FEBRUARY 13, 1951.
REHEARING DENIED MARCH 14, 1951.
Habeas corpus. Before Judge Edwards. Oglethorpe Superior Court. October 13, 1950.
Joseph B. McGinty and J. T. Sisk, for plaintiff in error.
Charles F. Johnson, Fred A. Gillen, and J. Walter LeCraw, contra.
Where children are involved in the granting of a divorce decree, it is the duty of the trial judge to award their custody. Where by decree an award is made asserting it to be "for the present," with a further provision that "this court retains jurisdiction for the purpose of determining permanent custody of the children," such will not divest the award of its finality, nor retain exclusive jurisdiction over their custody where a change of condition affecting their welfare occurs.
No. 17336. FEBRUARY 13, 1951. REHEARING DENIED MARCH 14, 1951.
This was a habeas corpus proceeding filed February 14, 1950, for the custody of two children, between the father and the maternal grandmother, in which a previous judgment for divorce, alimony, and custody is brought into question.
The father brought the proceedings against the grandmother in the Court of Ordinary of Oglethorpe County. Both were residents of that county. The children were in the custody of the grandmother. On the hearing there was testimony that the grandmother was neglecting the children and permitted them to go around begging, shabbily dressed and ill-kept; that she had tried to poison their minds and turn them against the father; that she would not permit them to receive Christmas presents sent them by him; that he had remarried, owned his farm, and could furnish them a good home. The grandmother denied that the children had been mistreated, and produced evidence that they had a good home and were well cared for. Both children, aged 9 and 10, testified they were contended and desired to remain with their grandmother. The verbal testimony was such as would have sustained the discretion of the ordinary in awarding the children to either. In support of her claim for the retention of the children, the grandmother introduced a certified copy of a judgment of Fulton Superior Court in the case of Robert Furcron v. Corinne Furcron, which, after granting a divorce, and alimony for the children, continued as follows: "It is ordered further that the custody of said children, for the present, be and the same is hereby awarded to the defendant, Corinne Furcron, and it is further ordered that the children be left in the care of their grandmother, Susie Burton, until the further order of this court. This court retains jurisdiction of this case for the purpose of determining permanent custody of the children at such time as the court in its opinion and upon further investigation, may deem for the best interest of said children."
The father testified that he was discharged from the Army in January, 1947, and shortly thereafter visited the mother of the two children, who was then insane and an inmate of a mental institution near Chicago, Illinois.
The ordinary awarded the custody of the children to the father. The grandmother filed a petition for certiorari to the superior court, which was sanctioned, and on the hearing of the writ the trial judge denied the certiorari, to which judgment exceptions are brought to this court.
The controlling question here is the construction and the legal effect of the judgment of the Superior Court of Fulton County granted in 1943. By this judgment has the Superior Court of Fulton County retained exclusive jurisdiction, up to this time, over the award of custody of the children involved? Ordinarily, where custody is awarded in divorce proceedings, the award is conclusive between the parties, though, where a change of circumstances affecting the welfare of the children subsequently occurs, a habeas corpus court can then change the custody. Under the Fulton County judgment it is reasonably clear that that court sought to retain exclusive jurisdiction over the custody of these children until, by further judgment, it had divested itself of exclusive jurisdiction. As to this the judgment stated: "It is ordered further that the custody of said children, for the present, be and the same is hereby awarded to the defendant, Corinne Furcron, and . . that the children be left in the care of their grandmother, Susie Burton, until the further order of this court. This court retains jurisdiction of this case for the purpose of determining permanent custody of the children at such time as the court in its opinion and upon further investigation, may deem for the best interest of said children."
We cannot find where this exact question has been passed upon by this court. Similar language, seeking to retain jurisdiction, was used in Oetter v. Oetter, 150 Ga. 118 (3), ( 102 S.E. 818), and Girtman v. Girtman, 191 Ga. 173 (2), ( 11 S.E.2d 782); but no ruling was made as to the authority of the trial judge to do so, as each case was decided on a different question. It was said in Ponder v. Ponder, 198 Ga. 781 (3) ( 32 S.E.2d 80), that whether the court could retain jurisdiction was an open question. It has been held that, where the judgment awarding custody contains the clause "until further ordered by the court," or a similar phrase, this does not deprive the order of its finality. See Scott v. Scott, 154 Ga. 659 ( 115 S.E. 2); Willingham v. Willingham, 192 Ga. 405 (1) ( 15 S.E.2d 514); Fuller v. Fuller, 197 Ga. 719 (2) ( 30 S.E.2d 600); Danziger v. Shoob, 203 Ga. 623 ( 48 S.E.2d 92).
We have two Code sections dealing with custody of children in divorce proceedings. Code § 30-206, providing for temporary alimony, permits the trial judge to "hear and determine who shall be entitled to the care and custody of the children pending the litigation." Section 30-127, relating to custody of children where a divorce has been granted, contemplates a disposition of the children based upon conditions then existing. We can see no authority in this section, either expressed or implied, that would permit the trial court to retain exclusive jurisdiction over the custody of the children. The custody is a vital issue to be determined when the divorce decree is granted, and the parties are entitled to a decision on this question as much so as on the question of divorce, or the amount of permanent alimony, if any, and such a decree becomes final on the facts then existing. Any attempt to modify the award of custody by declaring it temporary, leaving this issue indefinitely pending in abeyance, and seeking to retain jurisdiction for further investigation, will not divest the award of its finality. Of course, where there subsequently occurs a change of circumstances affecting the welfare of the children, the State as parens patriae, having guardianship of the incapable, opens the doors of its habeas corpus courts for a redetermination of custody, and this includes the courts of ordinary. Haire v. McCardle, 107 Ga. 775 ( 33 S.E. 683); Barlow v. Barlow, 141 Ga. 535 ( 81 S.E. 433).
Attorneys for the grandmother insist that, inasmuch as there are instances where judgments granting permanent alimony and reserving in the court the right to subsequently alter the conditions have been held valid, a judgment awarding custody of children should be given the same effect. Ordinarily, judgments for permanent alimony cannot be changed, an exception thereto being where the judgment is by agreement between the parties and the agreement is incorporated in the decree. Hardy v. Pennington, 187 Ga. 523 (1), ( 1 S.E.2d 667); Banda v. Banda, 192 Ga. 5 ( 14 S.E.2d 479); Chandler v. Chandler, 204 Ga. 40 (1) ( 48 S.E.2d 841).
In the instant case there is nothing to show any agreement between the parties as to the custody and, accordingly, no ruling is made on the effect of a decree awarding custody by agreement with a reservation for a subsequent change in the discretion of the court.
Under the foregoing rulings, together with the fact that there was sufficient evidence to authorize the court of ordinary as between the parties in this proceeding to award custody to the father, the trial judge did not err in denying the writ of certiorari.
Judgment affirmed. All the Justices concur.