Opinion
19005.
ARGUED JULY 11, 1955.
DECIDED SEPTEMBER 16, 1955.
Petition to modify divorce decree. Before Judge Lilly. Colquitt Superior Court. May 20, 1955.
A. J. Whitehurst, for plaintiff in error.
Robert E. Cheshire, Bob Humphreys, contra.
It was error to overrule the special demurrer to paragraph 5 of the petition. The allegations of the petition not specially demurred to were sufficient to allege a change of circumstances materially affecting the welfare of the minor children, arising since the rendition of the divorce decree, and the trial judge did not err in overruling the general demurrer to the petition.
ARGUED JULY 11, 1955 — DECIDED SEPTEMBER 16, 1955.
On March 30, 1955, Hunt Holmes filed a petition to modify a decree in a divorce action, entered October 1, 1951, wherein custody of the two minor children of the parties was awarded to the mother, Doris G. Holmes, with rights of visitation granted to the father. A copy of the decree and judgment awarding custody to the mother was attached to the petition and made a part thereof. The petition alleged: He has complied with the order of the court. Since the rendition of the decree, new and material conditions and circumstances have arisen substantially affecting the interest and welfare of the two children, Jim Hunt Holmes and Maribel Holmes. Since the date of the divorce decree the mother has become "unfit morally, mentally and temperamentally, for the further control and custody" of the children. The mother sub-rented her apartment on or about January 12, 1955, and she has failed to establish a home for the children. The petitioner has had the custody of the minor son (apparently by agreement) since January 7, 1955, for the purpose of having the son attend school, and the son has been in school since that date. On March 25, 1955, the daughter, Maribel, was left by the mother with her son, Mike Moye, and "Mike Moye carried said child to the home of Dr. Edgar Holmes where he left her." The petitioner's mother, Mrs. J. E. Holmes, obtained custody of Maribel Holmes at the home of Dr. Edgar Holmes. Prior to the time the mother subrented her apartment, Maribel Holmes attended kindergarten, but she has not been in school since the subrenting of the apartment. The petitioner has custody of the minor son, and Mrs. J. E. Holmes has custody of the minor daughter, under the circumstances set forth. Mrs. J. E. Holmes is a fit and proper person to have the care and custody of the children; she has a fine Christian home, and is willing to accept their custody.
The prayers of the petition were for process, rule nisi, that the order and decree be modified, that custody of the two children be awarded to Mrs. J. E. Holmes, that, pending the hearing, the custody of the children be placed in Mrs. J. E. Holmes, and that the mother be enjoined from interfering with Mrs. J. E. Holmes in the custody of the children.
The court passed an order requiring the mother to show cause why the former order should not be modified. Pending the hearing, custody of the children was placed in Mrs. J. E. Holmes.
The defendant's general and special demurrers to the petition were overruled, and the exception is to that judgment.
A decree of divorce in which the custody of a child or children is awarded to one of the parents is conclusive as between the parties to the decree as to the right of that parent to the custody of the child or children, unless a change of circumstances materially affecting the interest and welfare of the child or children is shown to have arisen since the date of the decree. Williams v. Crosby, 118 Ga. 296 ( 45 S.E. 282); Kniepkamp v. Richards, 192 Ga. 509, 519 ( 16 S.E.2d 24); Brooks v. Thomas, 193 Ga. 696 ( 19 S.E.2d 497); Fortson v. Fortson, 195 Ga. 750 ( 25 S.E.2d 518); Fuller v. Fuller, 197 Ga. 719 ( 30 S.E.2d 600); Waller v. Waller, 202 Ga. 535, 538 ( 43 S.E.2d 535); Madison v. Montgomery, 206 Ga. 199 ( 56 S.E.2d 292); Elders v. Elders, 206 Ga. 297, 299 ( 57 S.E.2d 83); Herring v. Herring, 208 Ga. 146 ( 65 S.E.2d 584); Hanson v. Stegall, 208 Ga. 403 ( 67 S.E.2d 109); Dodson v. Perkins, 210 Ga. 302 ( 79 S.E.2d 807); Barrentine v. Barrentine, 210 Ga. 749, 750 ( 82 S.E.2d 857).
It appears from the record that the original decree awarding custody of the two minor children to the mother was based upon an agreement of the parties. This fact "did not deprive it of the usual attribute of conclusiveness." Fortson v. Fortson, supra.
The allegation of the petition to the effect that since the date of the former decree the defendant "has become unfit morally, mentally and temperamentally, for the further control and custody" of the minor children of the parties, was attacked by special demurrer, on the ground that it was a conclusion of the pleader with no facts alleged to show how or in what respect the defendant had become unfit for the further custody and control of the children.
The failure of the court to sustain this ground of special demurrer was error. It is the rule that the plaintiff's petition shall "plainly, fully and distinctly" set forth the cause of action upon which the plaintiff relies. Code § 81-101. A charge that a mother has become "unfit morally, mentally and temperamentally" for the custody of minor children, standing alone, and with no allegation of fact to support the charge, is nothing more than a conclusion, and should be stricken when attacked by an appropriate special demurrer, in the absence of a timely amendment. The other grounds of special demurrer are without merit.
In the present case, from the allegations of the petition not specially demurred to, it appears that the mother has subleased her place of abode, that she does not maintain any permanent place of residence, that she has not kept the children in school, and that she has voluntarily surrendered actual custody of the children.
Whether or not these allegations may be established by competent evidence is not now before this court. It can not be held as a matter of law, however, that the petition fails to allege circumstances materially affecting the interest and welfare of the minor children, arising since the date of the former decree.
Judgment affirmed in part and reversed in part. All the Justices concur.