Opinion
35836.
DECIDED OCTOBER 5, 1955.
Petition to legitimatize child. Before Judge Davis. Walker Superior Court. June 11, 1955.
Shaw Shaw, George P. Shaw, for plaintiff in error.
W. A. McClure, Robert E. Coker, M. Neil Andrews, contra.
1. Under the provisions of Code § 74-103, a father of an illegitimate child may render the same legitimate by petitioning the superior court of the county of his residence; and thus jurisdiction is established, as set out in the petition in the instant case.
2. Under the facts of the present case, the superior court was authorized, in the absence of a request from either party, to pass upon the law and facts without submitting the facts to a jury; and the court having done so, either party is authorized to file a motion for a new trial without setting out the evidence, since only questions of law are involved.
3. An application to legitimatize a child is a separate and distinct issue from the final decision of who shall have the custody and control of the child. The court looks to the welfare of the child without regard to the desires and contentions of the parents. In view of this situation, the court did not err in granting the first new trial.
DECIDED OCTOBER 5, 1955.
On July 24, 1954, John D. Day (hereinafter called the plaintiff), filed his petition in the Superior Court of Walker County, alleging that he is a resident of Walker County; that he is the father of an illegitimate female child, three years of age, born on March 18, 1951, in Hamilton County, Tennessee, and now residing in Fulton or DeKalb County, Georgia, whose name is Daphne Virginia Bennett; that the mother of said child is Barbara Jean Bennett (hereinafter called the defendant); that the mother of said child is now in life and residing in Atlanta, Georgia, and that the plaintiff desires that the name of said child be changed from the name Daphne Virginia Bennett to the name Daphne Virginia Day; and he prays that said child may be legitimatized by the name last mentioned. The petition so filed was verified by the plaintiff on July 24, 1954, and a notice by the plaintiff was attached to the petition, directed to the defendant, advising of the filing of said petition to the August term, 1954, of Walker Superior Court, and reciting that the application would be heard at the August term, 1954, of said court on August 16, 1954, at 10 o'clock a. m. Following the petition appears the order of Hon. Freeman C. McClure, Judge Superior Courts, Lookout Mountain Circuit, dated August 13, 1954, ordering that a copy of the petition and order be served upon the mother of the child, the defendant, and that said petition be heard at the courthouse in Walker County, Georgia, on August 23, 1954, at 5 o'clock p. m. Service of the petition and order upon the defendant on August 18, 1954, is shown by the affidavit of Bernard W. Harper. By order of August 21, 1954, the court granted the defendant until September 4, 1954, to file demurrers, pleas, and objections in said cause and set same for hearing on September 24, 1954 at 5 o'clock p. m.
On August 27, 1954, and before any trial or hearing in said cause, the defendant filed her plea to the jurisdiction of the court, asserting therein: that she is the natural mother of the child named in said cause, and that the Superior Court of Walker County, Georgia, ought not to have or take cognizance of said suit because at the time of the commencement of same, on July 24, 1954, and thenceforth, the said defendant resided in the County of DeKalb, Georgia, and is now a resident of said County of DeKalb and is not a resident of the County of Walker; and that the Superior Court of DeKalb County, Georgia, has jurisdiction of this case, and the Superior Court of Walker County has not, for the further reason that the child, Daphne Virginia Bennett, the subject for which the petition in said cause has been brought to legitimatize, was at the time of the filing of said suit and is now a resident of DeKalb County, Georgia, and the Superior Court of DeKalb County, Georgia, has jurisdiction of said child, and the Superior Court of Walker County, Georgia, has not. The plea to the jurisdiction was duly verified by the defendant and duly served upon opposing counsel, as shown by the certificate of service attached thereto.
On the same date of August 27, 1954, the defendant also filed her plea in abatement to the petition filed in said cause, asserting in said plea that she is the natural mother of said child; that the petition should abate for the reason that an action has been filed by Mr. and Mrs. H. L. Hatton for the adoption of the minor child, which proceeding is pending in the Superior Court of DeKalb County, Georgia; that the defendant has heretofore and in connection with said adoption proceedings given her consent to the same, and temporary custody of said child has been heretofore awarded to the said Mr. and Mrs. H. L. Hatton and that the mother of said illegitimate child is entitled to exercise all parental power as to said child under the provisions of Georgia Code §§ 74-203 and 74-405; and since her consent has been given as aforesaid and in connection with said adoption proceedings, pendency of same is a bar to this proceeding to legitimatize said child, filed subsequently to the filing of said adoption proceedings. The plea in abatement further asserts that the child is a resident of DeKalb County, Georgia, and that the superior court of said county in which said adoption proceeding is pending has jurisdiction thereof. The plea in abatement concludes that the Superior Court of Walker County, Georgia, should not try the petition of the defendant to legitimatize said child for the reasons stated; and that same should be abated until the final judgment and decree upon said adoption proceeding pending in the Superior Court of DeKalb County, Georgia. The plea in abatement is duly verified by the defendant, and service thereof was perfected in accordance with the certificate of service attached thereto.
On the same date the defendant filed her answer, objecting to the granting of the prayers of the petition. The objection as so filed by the defendant prayed that the prayers of the petition be denied, and that he not be permitted to legitimatize said Daphne Virginia Bennett, and that her name not be changed to Daphne Virginia Day.
In support of her objection to the legitimation of her child by the petitioner, the defendant alleged in her answer that she is the natural mother of Daphne Virginia Bennett, and by reason of such relationship is entitled to file her objections and be heard in this cause; and without admitting the paternity of the child by the plaintiff, the answer avers that the petition of the plaintiff to legitimatize the daughter of the defendant is not filed in good faith, but is fraudulently brought, and that he has no parental interest in said child.
The answer makes numerous detailed averments of unfitness and fraud upon the part of the plaintiff, which may be summarized in part as follows: that the plaintiff is a married man 62 years of age, of intemperate habits, frequently engaging in adulterous relationships with other women, violent and abusive in conduct, unfit to have the custody or control of a 3-year-old female child, addicted to the excessive use of intoxicants, a professional gambler convicted of the offense of illegal enterprises, who will leave no estate for said child to inherit; that plaintiff has brought his petition to legitimatize said child in bad faith and fraudulently as a part of a scheme to gain control of said child in order that he may, through the mother's love and affection of said child and concern for her welfare, force the defendant to renew her cohabitation and adulterous relationship with him; that he has not contributed anything toward the support of said child, has denied his paternity of the child, and, while cohabiting with the defendant, refused upon request to render said child legitimate. The answer alleges at length numerous facts and specific acts upon the part of the plaintiff in support of the foregoing averments. The answer further alleges that the defendant, having separated from the plaintiff, is living an upright and moral life and adequately providing for the support of said child from her earnings as a waitress; and that she is a fit and proper person to have the custody of the child, and to have the child bear her name until such time as the child may be adopted by fit and proper adoptive parents; that Mr. and Mrs. H. L. Hatton of DeKalb County, Georgia, have instituted adoption proceedings in the Superior Court of DeKalb County, Georgia, for the adoption of said child; and that they have temporary custody of the child under those proceedings pending the final order of adoption.
On September 24, 1954, said case came on for a hearing before the court, and after argument of counsel an oral motion was made by counsel for the plaintiff to dismiss the plea to the jurisdiction and to dismiss the plea in abatement filed in said cause by the defendant; and said plea to the jurisdiction and said plea in abatement were each, by orders dated September 24, 1954, dismissed.
To the orders sustaining the plaintiff's oral motions to dismiss said plea to the jurisdiction and said plea in abatement the defendant excepted and by her bill of exceptions excepts to said rulings of the court; and the questions raised by the assignments of error on the court's order sustaining the motion to said plea to the jurisdiction and on the order sustaining the motion to the plea in abatement are now before this court for review.
On said date of September 24, 1954, the case proceeded to trial on its merits before Honorable Freeman C. McClure, judge of said court, in accordance with the provisions of Code § 74-103. A jury trial was not waived by objector nor was trial by a jury dispensed with by agreement of the parties or by agreement of counsel for the parties, but same proceeded to hearing before the court without a jury, under the provisions of said Code section, which makes no provision for a jury trial in such cases.
Upon said hearing and at the conclusion of the evidence submitted by the plaintiff and at the conclusion of the evidence submitted on behalf of the defendant, the court, upon oral motion of the plaintiff, continued the hearing to a subsequent unspecified date in order to enable the plaintiff to obtain additional evidence in the form of depositions.
By order dated October 29, 1954, the court set said matter for conclusion in a hearing thereon for November 20, 1954, at 10 o'clock a. m., and on said date the plaintiff presented additional evidence in the form of depositions taken in said cause, at the conclusion of which the court entered its final order, judgment and decree denying the prayers of the plaintiff to legitimatize the child, and taxing the costs in the case against the plaintiff.
On December 9, 1954, the plaintiff filed a motion for new trial upon the following grounds: (1) Because the decision of the court is contrary to evidence and without evidence to support it. (2) Because the decision is decidedly and strongly against the weight of the evidence. (3) Because the decision is contrary to law and the principles of justice and equity.
The foregoing proceedings were held before Honorable Freeman C. McClure, Judge of the Superior Court, Walker County, Georgia. On January 1, 1955, the said judge was succeeded as Judge of the Superior Court of Walker County, Georgia, by Honorable John W. Davis.
On May 10, 1955, the plaintiff filed his amendment to the original motion for new trial, setting forth several special grounds alleging error in excluding certain testimony offered on behalf of the plaintiff regarding plaintiff's character 20 years before this trial, and in excluding part of the deposition of a witness for the plaintiff which was excluded by the court because of the refusal of the witness to submit to complete cross-examination. The full and complete grounds of the motion as amended are set forth in the record specified in this case.
The plaintiff's motion for new trial came on for a hearing before Honorable John W. Davis, at a subsequent date, and at said hearing, prior to consideration of said motion for a new trial by the court, the defendant made an oral motion in open court as follows: "Defendant, Barbara Jean Bennett, moves to dismiss petitioner's motion for a new trial and amendment to motion for new trial upon the grounds that same is not the proper procedure, a direct bill of exceptions being the proper procedure."
By order dated June 11, 1955, Honorable John W. Davis denied the defendant's motion to dismiss the motion for new trial, filed by the plaintiff. To this order denying the defendant's motion, the defendant excepted and in her bill of exceptions assigns the order denying said motion as error. By order dated June 11, 1955, Honorable John W. Davis, entered the following order: "The motion for new trial in the above-styled matter is granted."
The defendant assigns error upon the rulings of the court overruling her plea to the jurisdiction, overruling her plea in abatement, and overruling her motion to dismiss the motion of the plaintiff for a new trial, and this cause is now before the Court of Appeals upon those assignments of error.
The issues of law involved are: (1) whether or not the court erred in overruling the defendant's plea to the jurisdiction; (2) whether or not the court erred in overruling the defendant's plea in abatement; (3) whether or not the court erred in denying the defendant's motion to dismiss the motion for a new trial filed by the plaintiff; (4) whether or not the court abused its discretion in granting a first new trial.
1. The first question which the court will consider is whether or not the trial court erred in overruling the plea of the defendant to the jurisdiction of the court. At common law the status of a bastard was fixed and the rights of a bastard were few. For a discussion of the progressive steps by which the laws of Georgia have alleviated the position of a bastard, we call attention to Hicks v. Smith, 94 Ga. 809 ( 22 S.E. 153), wherein the court said: "The status of the bastard as fixed by the common law, except as changed by statute, remains under our system of laws." (Italics ours.) The right to legitimatize a bastard child is statutory, and the provisions as to such are found in Code § 74-103, as follows: "A father of an illegitimate child may render the same legitimate by petitioning the superior court of the county of his residence, setting forth the name, age, and sex of such child, and also the name of the mother; and if he desires the name changed, stating the new name, and praying the legitimation of such child. Of this application the mother, if alive, shall have notice. Upon such application, presented and filed, the court may pass an order declaring said child to be legitimate, and capable of inheriting from the father in the same manner as if born in lawful wedlock, and the name by which he or she shall be known."
The jurisdiction has been and is now vested only in the superior court of the county of the father's residence. Under the facts of this case, undisputedly the father is a resident of Walker County. The Code section hereinabove quoted was codified from an act approved March 6, 1856 (Ga. L. 1856, p. 260). This section has gone through all the Codes, including the present one. Along the way certain words were changed as follows: The words "the court may pass an order" were substituted for the words "It shall be the duty of the court to pass an order." The Code section appears in the Code of 1873 in its present form. The Supreme Court in Henderson v. Shiflett, 105 Ga. 303 ( 31 S.E. 186), and the court of Appeals in Thomas v. Murphy, 89 Ga. App. 687 ( 81 S.E.2d 26), held that the provisions for notice to the mother necessarily inferred the right to object.
It is contended by counsel for the defendant that the Code section hereinabove referred to is in violation of the Constitution of the State of Georgia of 1945, art. VI, sec. XIV, par. VI (Code, Ann., § 2-4906). This question cannot be brought to an appellate court for the reason that, before an appellate court would have authority to determine such issue, the question must first be raised in the trial court and a ruling thereon had in the trial court. See Aiken v. Richardson, 207 Ga. 735 ( 64 S.E.2d 54). The court did not err in overruling the plea to the jurisdiction.
2. The next question to be determined is whether or not the court erred in overruling the plea in abatement. In the consideration of this question rest the germane issues in the case. Counsel for each party devote learned and considerable argument on this issue. It involves the question of whether or not the trial court is bound to have a jury pass upon the facts. We have found no law, and our attention has been called to no provisions of law, requiring the court of its own motion to submit the facts to a jury in such a proceeding. The court may do so, but the law does not require it to do so. It is the law further that, in a case such as we are now considering, either party may require the court to submit the facts to a jury for determination. Neither party in the case at bar made such a requisition to the court. In the absence of such a request, the court is authorized, under all the authorities which we have examined, to pass upon the questions of law and fact, as the court did in the instant case. It follows that either party may except to the findings of fact by the court in the same manner as if a jury had passed upon the facts. A motion for new trial may be based on the finding of facts by the court as though it were a jury verdict regarding the facts, or either party may, without filing a motion for new trial, file a direct bill of exceptions to an appellate court. Counsel for each party cite numerous decisions concerning this issue. In our opinion it is unnecessary to enumerate those authorities. So we decide on this question that the superior court has authority, in such cases as this, to submit the facts to the jury, or that either party may require the court to submit the facts to a jury. No request was made by either party that the facts be submitted to a jury for a verdict thereon, and the court did not of its own initiative submit the facts to a jury for determination. The court passed on the law and the facts. The court found, as we have set out above, upon the evidence introduced on the hearing of the plea in abatement that the plaintiff was not entitled to legitimatize his bastard child. Since the court was authorized, under the law, to render this judgment, the plaintiff was authorized to file a motion for new trial, which he did. As to the statutory grounds and the special grounds, the court was within its authority in allowing this motion for new trial, and the plaintiff is not required to bring the case here on a direct bill of exceptions, as the defendant contends. Therefore, this contention on the part of the defendant is without merit.
3. We, therefore, come to consider whether or not the court abused its discretion in granting a first new trial. To discuss this question intelligently, it is necessary for us to set forth generally the evidence. The plea in abatement alleged that the plaintiff had no parental love for the bastard child; that his petition was brought in bad faith in order to compel the defendant to resume her cohabitation with him; that he is a criminal, having been convicted several times; that he had not contributed anything to the support of the child; that he is an immoral and degraded character in every respect; that there is pending in DeKalb County a proceeding for the adoption of the child by a competent and high-class couple; that the defendant has consented to the adoption and did temporarily release the custody of the child to the petitioners for adoption; that the applicants for adoption had accepted the temporary custody of the child pending a final decree; that the child's name was given to the prospective adopting parents as Daphne Virginia Bennett; that the child is a resident of DeKalb County, where adoption proceedings were instituted; that to change the name as the plaintiff desired would very likely upset the adoption proceedings. The plaintiff denied these allegations, and introduced evidence to support his contentions. This evidence was to the effect that he was amply able to support the child, and that the criminal offenses charged against him were many years prior to his petition to legitimatize his bastard child; that recently and at the time of the trial he was supporting his child. The trial court, after consideration of all the evidence and the law, granted a first new trial. It is likely that the court felt, under the evidence and the law, that the plaintiff was entitled to legitimatize the child and it is also likely that the court determined that error was committed in refusing the petition of the father to legitimatize the bastard child, so that it could inherit from him. We might state also that this is not a question involving the disposition of custody of the child. The Superior Court of DeKalb County may or may not approve the adoption of the child, which proceeding is now pending in that court. The disposition of the child is yet to be finally determined. That is a question far apart from the proceeding of the father to legitimatize the child. He may yet, or anyone else, may appear in the adoption proceedings and testify as to what is to the best interest of the child. The court may award the custody of the child to some third person on a final hearing, having in mind only the welfare of the child. This may be done regardless of the desires of either the father or the mother of the child. In view of such a situation, the trial court did not abuse its discretion in granting a first new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.