Opinion
16358.
OCTOBER 13, 1948.
Divorce, etc. Before Judge Sloan. Stephens Superior Court. May 14, 1948.
Logan Scott, for plaintiff.
George L. Goode, McClure Ramsay, and George G. Allen, for defendants.
1. If an order is equivocal and susceptible of more than one interpretation, it will be construed consistently with the theory that the judge performed his duty by considering the evidence and making a finding from it, where the issue is one for such determination.
2. Under the facts and circumstances disclosed by the record in this case, the trial judge abused his discretion in failing to award custody of a minor child to the mother of the child.
3. No ruling is necessary on the exception to the order reopening the case for the introduction of further evidence, since the ruling, if error, was harmless.
4. On the basis of a change in conditions, the evidence demanded a finding in favor of the mother as to custody of the youngest child and demanded a finding in favor of the father as to custody of the oldest child.
No. 16358. OCTOBER 13, 1948.
Kytle J. Oliver and his wife, following their separation, entered into an agreement on February 28, 1944, as to alimony and custody of their children. This agreement recited that there was one child and another was expected to be born, and that for the payment of $30 cash, $25 when the wife left the hospital after the birth of the child, and $100 on the hospital expenses, the wife released the husband from all claims for alimony for herself and the children. The agreement further provided: "The said Clara Ruth Oliver hereby relinquishes control of Patsy Oliver to her father, Kytle Oliver, and further agrees that the custody, possession, and control of the child yet to be born shall be relinquished as soon after the date of birth as possible to the father, Kytle Oliver, so that he shall have custody, control, possession and all the rights thereof which may lawfully be exercised by the father of such children. The said Clara Ruth Oliver hereby accepts the payment of said sums in full and complete satisfaction of all claims for alimony, both temporary and permanent, and in lieu of all claims for support, maintenance, or otherwise for herself and said named child, and all and every claim of any character whatsoever which she may have against the said Kytle Oliver. It is further agreed between the parties that the said Kytle Oliver shall retain the possession, custody, and control of Patsy Oliver, and that, after the birth of the child above provided for, the said Kytle Oliver shall have the custody, possession, and control of said child, and shall as soon as said child is delivered to him be responsible for the support, maintenance, education, and upbringing of both of said children during such time as they may remain in his custody and control."
After the execution of the agreement, a child, Alice Faith Oliver, was born on March 16, 1944; and shortly thereafter the husband, Kytle J. Oliver, filed a suit for divorce in the Superior Court of Stephens County. On November 13, 1944, a decree was entered in the divorce proceeding, providing: "The custody and control of the two minor children, namely, Patsy Oliver, age five, and Nickie Wray (Alice Faith) Oliver, age six months, is hereby awarded to the plaintiff, Kytle J. Oliver. The provisions of the contract and agreement entered into by the parties with reference to temporary and permanent alimony, custody, control, and support of the minor children insofar as the same is applicable are hereby made by reference a part of this decree."
On November 13, 1947, the wife filed in the Superior Court of Stephens County a petition, or motion, to modify and set aside the divorce decree of November 13, 1944, insofar as it awarded custody of Alice Faith Oliver to the husband. She alleged, among other things, that both she and her husband, Kytle J. Oliver, had remarried; that by her consent the custody of the minor children had been awarded to her husband in the divorce proceedings; that after possession of the youngest child, Alice Faith Oliver, had been delivered to her husband, he, when the child was about eleven months old, had placed the child in the custody of a Mr. and Mrs. E. W. Poole, where the child had since remained; that on or about July 29, 1946, the Pooles, after having possession of the child for about a year, filed in the Superior Court of Stephens County a petition for adoption of the child; that on July 15, 1947, upon it being made to appear that the movant had never been served with notice of the application for adoption, all previous orders in the matter were rescinded by the court, and thereafter the movant had filed her objections to the adoption proceedings; that the father had lost his parental control of the child by consenting to its adoption, and by his failure to provide for its support and maintenance. The petitioner tendered payment to the Pooles of all expenses and expenditures made in supporting the child, and, being a non-resident, offered to give such bond as the court might require for the return of the child to the jurisdiction of the court at any time and place that might be directed. Upon the prayers of the petition a rule nisi issued, directing that Kytle J. Oliver and Mr. and Mrs. E. W. Poole show cause why the divorce decree should not be modified so as to grant custody of the child to the petitioner.
By an amendment, which was allowed and filed, the petitioner amended the original petition by praying for the custody of the child, "because of changed conditions." She alleged that the changed conditions, upon which she based her prayer for custody, were as follows: (a) that the petitioner has regained her health to the extent that she is now physically able to care for the child; (b) that she is now happily married to Bronston D. Sessions, who is financially able to support and educate the child and is anxious to do so; (c) that the father of the child has abandoned her and left her in the custody of the Pooles, who are no relation to the child and filed their application for her adoption; (d) that, as a part of the adoption proceedings, the father of the child has in writing consented to the adoption of the child. She alleged that the agreement entered into between her and her husband as to the custody of the child was void because she was in ill health and pregnant at the time the contract was made, because the contract was without consideration, and because it was against public policy, in that no divorce proceeding was then pending. The petitioner attached as exhibits copies of the agreement, divorce decree, adoption proceedings, and the written consent for adoption signed by Kytle J. Oliver.
Kytle J. Oliver answered, alleging that his children were awarded to him in the divorce decree, because the wife, at the time, had abandoned them and left them in a destitute condition, and it was necessary for him to obtain custody of the children and provide for them a suitable and fit place to be supported and educated. He admitted that he had left the youngest child with the Pooles at the age of about eleven months, and that the Pooles have now filed an application for adoption of the child.
The Pooles answered, admitting the allegations of the petition as to their custody of the child and their application for adoption; and alleged that the movant's prayers should be denied because she had deserted the child in its infancy, leaving it without means of support, and the welfare and security of the child are being provided by the respondents.
It was stipulated and agreed that the motion to vacate the decree awarding custody and the application for adoption should be tried together, the court considering pertinent evidence as it might relate to each case.
The evidence developed the following facts: According to the agreement, Oliver paid the hospital expenses while his wife was confined, but after the birth of the second child, he did not then secure possession and custody of the child. For about six or seven months after the birth of the child, the mother supported the child and had exclusive possession of the child. Some time in July or August, 1944, the mother took the child to Lexington, North Carolina, to the home of her sister. A day or two later she left the child with her sister while she went to another city to seek employment. When she returned about three days later, she found that her sister had taken the child to the home of its maternal grandparents. Shortly thereafter Oliver and officials of the Red Cross went to the home of the grandparents and obtained custody of the child, carrying it to Toccoa, Georgia, where it was placed in the home of a person not related to the child. Oliver, who had gone into the Navy on May 4, 1944, had, through the Red Cross, arranged for an allotment for the child; and, through arrangements with the Red Cross, the allotment was used to support the child. For several months the child remained in the home where it had been placed, and during this time the mother visited it several times and brought it clothing. Finally, because of circumstances making it inconvenient for the child to remain in the home where it had been placed, the child was placed in the home of Mr. and Mrs. E. W. Poole, where it has since remained. The mother, although making an effort to locate the child, was unable to do so for several months. When she finally located the child, she found that the Pooles had filed an application for adoption, which had been consented to by the father of the child, and a final judgment had been entered in this proceeding. Upon her objections, the judgment was vacated because she had no notice of the proceeding. There was voluminous evidence, which was not contradicted, as to the good character of both the father and the mother of the child, as well as the Pooles. The uncontradicted evidence showed all parties to be of good character, with good homes and ample means to support and educate the child.
After the introduction of evidence, the court took the cases under consideration, and later orally announced that he would deny the prayers for adoption. Thereupon, counsel for the applicants for adoption made an oral motion that the case be reopened for the introduction of additional evidence. Over objections the motion was granted, and a date set for a further hearing. On the date fixed, counsel for all parties were present and announced ready. Thereupon, without the introduction of further evidence, counsel for the applicants for adoption dismissed their petition. Counsel for Kytle J. Oliver then filed the following: "Now comes Kytle J. Oliver and hereby withdraws and retracts his consent to the adoption of Alice Faith Oliver (Nickie Wray Oliver) heretofore filed by him in said proceeding."
The trial court announced that all evidence previously submitted would be considered in passing upon the case; and after argument, the court passed the following order: "After hearing the evidence and argument of counsel in the above stated case, it is considered, ordered, and adjudged that the prayers of the movant, Mrs. Clara Ruth Sessions, for modification of the decree [are] hereby refused and denied. The denial of the prayers of the plaintiff's petition is not an adjudication as to the present proper custody of the minor involved, but is a holding that the court does not feel justified in this proceeding in modifying the decree based upon the contract and voluntary consent of the parties." To this judgment the plaintiff in error excepted.
1. Originally the plaintiff in error, mother of the two children involved, filed her petition to set aside or modify a divorce decree, praying only that the decree be set aside or modified so as to give her custody of one of the children. By amendment she changed the prayer of the petition into one for modification of the decree upon the ground of changed conditions, after setting out in her amendment the nature of the changed conditions.
The order passed by the trial court is susceptible of different interpretations. The trial court in the first sentence of the order denied the prayer of the petition, which had the effect unquestionably of adjudicating that there were no such changed conditions as would warrant a modification of the decree. Then the court stated that the denial of the prayer of the petition was not intended as an adjudication of the "present proper custody." Nevertheless, the effect of the judgment was to leave the custody in statu quo, thus denying custody to the mother, and leaving the father with one child and the petitioners for adoption with the custody of the other child.
Our interpretation of the order is in agreement with that placed upon it by counsel for the defendants in error, who state in their brief: "The refusal to modify the decree had the legal effect of continuing the custody as previously fixed and holding that there were no material changes in condition which substantially affected the interest and welfare of the children or either of them." Counsel then cite the case of Fortson v. Fortson, 195 Ga. 750 (1), 758 ( 25 S.E.2d 518), where this court held: "The order was in part as follows: `The evidence, in the opinion of the court, is not sufficient to justify the setting aside or modification of the decree of May 8, 1941; and the defendant's prayer that permanent custody of the children be awarded to him is, at this time, denied.' We construe this language as a finding from the evidence that no material change in the circumstances appeared, and hence that the original decree should be allowed to stand. If an order is equivocal and susceptible of more than one interpretation, it will be construed consistently with the theory that the judge performed his duty by considering the evidence and making a finding from it, where the issue is one for such determination."
In this case we construe the order as a denial of custody to the mother of the children upon the ground that there was no material change in conditions, and hence that the original decree should be allowed to stand.
2. This is a controversy involving the right of custody of a child, as between parents and third parties. Although the petition, as finally amended, prayed for custody of both children, the main issue as to custody relates to the youngest child, and that issue is here considered. The defendant in error Oliver contends principally that the trial court did not err in denying custody to the mother of the child, because (1) she had abandoned the child in its infancy and left it without means of support, and (2) the child was awarded to him under a divorce decree, which is res adjudicata as to the right of custody.
Certain facts in this case are undisputed. All parties involved are persons of good character, amply able and willing to support the child. They maintain homes of good environment, where the children can be properly reared and educated.
In determining whether the trial court abused its discretion in denying custody of the youngest child to the mother, it is necessary that we determine the relative rights of the parties.
Although, as between parents in a contest over custody of minor children in a divorce case, no prima facie right of custody exists, the divorce decree in this case, which awarded custody of the children to the father, based upon an agreement between the parties, vested in the father the prima facie right of custody. This judgment, however, is not conclusive, except as to the status existing at the time of its rendition, and is subject to a change or modification on a showing of a change in circumstances or conditions since its rendition. Milner v. Gatlin, 143 Ga. 816 (4) ( 85 S.E. 1045, L.R.A. 1916B, 977); Fortson v. Fortson, supra.
Where a divorce decree, awarding custody to a father, vests the prima facie right of custody in the father, that prima facie right of custody may be forfeited by the actions of the father subsequent to the rendition of the decree. By the Code, § 74-108, it is provided that parental control of a minor child shall be lost by either of six means, among them: (1) voluntary contract, releasing the right to a third person; (2) consenting to the adoption of the child by a third person; and (3) failure of the father to provide necessaries for his child, or his abandonment of his family.
It was established by undisputed evidence in this case that the father voluntarily, after the rendition of the divorce decree, consented in writing to the adoption of his youngest child; and, for approximately a year prior to the institution of the present proceedings, the child had been living in the home of the persons proposing to adopt it; and, at the time of the institution of the action by the mother of the child, these third parties were caring for and supporting the child. With regard to his reason for consenting to the adoption, the father testified: "As to my consenting for the Pooles to have this child and have its name changed and completely take it away, I feel they are more able than I; they have got the money and the finances and everything it takes to send a child through school." Notwithstanding this testimony, the father offered a number of witnesses to testify as to his financial ability to support the child.
We have no hesitancy in ruling, under the plain mandate of the law and the undisputed evidence, that the father by his conduct, his voluntary consent to the adoption of the child and his subsequent failure to provide for the necessaries of his child, forfeited his right of custody. With the forfeiture of this right, where stands the mother of the child with regard to its custody?
This question was recently answered by this court in the case of Hill v. Rivers, 200 Ga. 354, 357 ( 37 S.E.2d 386). There the court was dealing with a contest between parents and a third party, which arose after a divorce decree had granted custody to the mother. It was held that the mother by her unfitness of character had lost the prima facie right of control which she had by virtue of the divorce decree. The court said: "This court is committed to the proposition that where the mother of a child, to whom custody has been awarded by a divorce decree, dies, the prima facie right of custody automatically inures to the father. Chapin v. Cummings, 191 Ga. 408 ( 12 S.E.2d 312); Girtman v. Girtman, 191 Ga. 173 ( 11 S.E.2d 782). If the prima facie right of custody of the child reverts to the father upon the death of the mother, why should it not do so if the right of custody be lost by the mother by reason of her unfitness of character? Logic and reason compel the conclusion that, when the custody is forfeited in the mother, the custody automatically inures to the father, unless it be lost in one of the modes provided by law. The natural rights of the father are not annulled by a provision in a divorce decree awarding custody of a child to the mother; they are only suspended for the time being, and are revived in full force upon the mother's death, and, we think, upon her forfeiture of her right of custody. With the prima facie right of custody having been forfeited by the mother in this case, such right automatically inured to the father."
It is, therefore, clear that with the forfeiture of custody by the father in the instant case, the prima facie right of custody automatically and immediately vested in the mother. In the Hill case it was further held, after exhaustive quotations from many authorities, that the right of custody thus vesting in a parent by virtue of a forfeiture was superior to the right of custody of a third party, where the evidence showed both parties to be of fit character and of ample means to rear the child; and that it was an abuse of discretion for a trial court to override this prima facie right of custody by awarding custody to a third party.
It is urged in this case, however, that the consent to adopt is immaterial, because the father, just prior to the rendition of the judgment complained of, revoked the consent when the adoption proceedings were voluntarily dismissed.
Where the parental authority over an infant child is released to another, such release is not revocable unless some sufficient legal reason is shown therefor. Durden v. Johnson, 194 Ga. 689 ( 22 S.E.2d 514), and cit. A mere change of mind on the part of the parent consenting is not such legal cause as will revoke the consent. "If the child were badly treated it might be annulled; if any other good legal reason arose, it could be set aside as any other contract which was violated; but for no cause at all, it cannot be." Bently v. Terry, 59 Ga. 555, 557 (27 Am. R. 399). In the instant case, the father, in seeking to revoke the consent previously given, gave no reason at all, legal or otherwise, in support of his action. On the contrary, the only conclusion to be drawn from the circumstances is that the action taken was for the purpose of defeating any right of custody the mother might have acquired.
Moreover, whether his action was upon legal grounds or not, an attempt at revocation could not have the effect of divesting the prima facie right of custody automatically acquired by the mother upon the voluntary relinquishment of such right by the father. A vested right immediately inured to her benefit; and although she might, by subsequent acts, divest herself of that right, the father could not do so — no more than he could had he lost the parental control by his unfitness of character and had sought to retrieve it by announcing to the court his repentance and intention to amend his ways.
Finally, it is urged by the defendants in error that the mother of the child had lost her parental control by abandonment of the child.
It might be pointed out that, under the agreement entered into between the parties, the father agreed to take custody of the child and to support the child. Notwithstanding this agreement, the mother actually supported and maintained the child while she retained custody of it for six or seven months after its birth. The father made no effort to obtain custody until the mother left the child with her sister while she went to look for work. The father then, through the Red Cross, secured custody of the child. The most favorable evidence for the defendants in error tended to show that at the time the father obtained custody of the child, taking it from the home of the maternal grandparents, the child was in ill health, dirty, and in need of clothing and medical care. This evidence alone is insufficient to show any abandonment of the child by the mother. After the father secured the child, the mother made trips to see it and took it clothing. There is not the slightest evidence which might lead to the conclusion that the mother intended to abandon her child when she left it with her sister. The father, testifying as to the circumstances of his obtaining custody of the child, stated: "I didn't go to the Crunkleton home to get the baby; I drove up and sat in the car; Mrs. Martin went in the house and got it. I drove the Red Cross car there. I went there for the purpose of taking the baby away from the grandfather and put it in the home of someone who was not related to me. I knew they were going to take it. They were not related to me. I was not trying to take the child away from the mother. . . If she had wanted, she could have kept it. As to agreeing for her to keep it, I never did say anything contrary about it. I asked for it in the divorce proceedings, but I didn't get it until she abandoned it. I wouldn't think the child was abandoned when it was at the home of Mr. Crunkleton in Cornelia. From the time the child was born until she left Brunswick, I didn't know where the child was. I sent a hundred dollars to the hospital to pay the bill. I don't know what she did with the money. I don't know what the hospital bill was. She didn't notify me when she left the hospital. The first I knew where this child was, was when the Red Cross wrote me in Virginia. I sent the money to her at the hospital. She left of her own accord and I had nothing to do with it. I didn't hunt her up. . . I didn't find her at Crunkleton's. If the mother left her child with her father, I wouldn't call that abandoning it."
Even if the court might consider the question of abandonment of the child by the mother, which alleged act occurred prior to the rendition of the divorce decree and long prior to the consent to adoption, and while the father was under a legal and contractual obligation to support the child, there was no evidence from which it might be inferred that such abandonment actually occurred.
Under the undisputed facts, the trial court abused its discretion in denying custody of the youngest child to the mother.
3. It is unnecessary to rule upon the exception to the judgment allowing the case to be reopened for the introduction of further evidence, since the record reveals that no new evidence was actually introduced; and such ruling, if error, was harmless.
4. While the evidence was sufficient to authorize a finding that the original agreement as to custody of the children was binding upon the parties, and should not be modified or set aside because of alleged circumstances surrounding its execution, nevertheless the evidence demanded a finding for the mother as to the custody of the youngest child on the ground of a change in conditions subsequently to the date of the agreement and the divorce decree. There being no showing of a change in conditions as to the oldest child, the evidence demanded a finding in favor of the father as to the custody of that child. Accordingly, the judgment must be reversed insofar as it failed to award custody of the youngest child to the mother; and the judgment must be affirmed insofar as it had the effect of retaining custody of the oldest child in the father.
Judgment affirmed in part, and reversed in part. All the Justices concur, except Bell, J., absent on account of illness.