Opinion
16869.
JANUARY 9, 1950.
Custody of minor children. Before Judge Price. Evans Superior Court. August 29, 1949.
C. L. Cowart, for plaintiff in error.
R. L. Dawson, contra.
Where, on the hearing of the wife's petition seeking custody of her two minor children, upon an alleged change in conditions since the judgment awarding custody to the husband, the only evidence of a change was the husband's admission that there was general talk in the community about the mother and, knowing that others would tell the children, he told them that she was immoral and did not love them, it was an abuse of discretion to award custody to the wife upon this ground alone.
No. 16869. JANUARY 9, 1950.
On the hearing of the mother's application, based upon an alleged change in conditions since the judgment awarding custody of their two minor children to the husband, the evidence was in substance as follows:
The plaintiff testified that she saw the children when they had head lice and sores on them; that they had to cook, wash, and keep house; that they were not properly supervised and cared for; that it was necessary for her to have some dental work done for them; and that the father had been poisoning their minds against her by telling them that she did not love them and that she was immoral.
She further testified: that she lives in Savannah with her mother and her sister, Mrs. Driggers; that she and her sister work, and that she works an eight-hour shift sometimes days and sometimes nights; that she curses and drinks some, but does not get drunk; that she did attend a company party at the Gold Star Ranch Casino last fall, and drank some, as did most of the other guests, but she did not get drunk or have a fight with some other woman there.
The father testified: that he was keeping the children in the same home under substantially the same conditions as existed when custody was awarded to him; that his sister helped supervise them; that the children work some, but not too much; that he drives a school bus and takes them to and from school; that they did get head lice at school, but after treatment they got rid of them; that he did tell them their mother did not love them and was immoral because there was lots of talk of it in the neighborhood, and he wanted to tell them before someone else did; and that they seemed depressed thereafter.
The father and sister of the defendant corroborated his testimony. A neighbor, who had spent several nights with the family, testified that the food was good, the house was clean, and the children were neat. The County School Superintendent, the Superintendent of the Junior High School which the children attended, and one of the teachers testified that the children attended regularly, were neat, well-trained, and made good grades. The 1948-49 school record of one child showed an average grade of 95.8 and an absence of only five days during the nine months' term.
A former policeman of the City of Claxton testified that he knew the sister of the petitioner, Mrs. Driggers, with whom the mother now lives, and that her reputation as to sobriety and chastity is bad. A taxi driver in Savannah testified that the mother and her sister, Mrs. Driggers, rode home from the Gold Star Ranch Casino some time in October or November, 1948; that they were involved in a fight with two other women; that they were both drunk and were badly beaten up.
The court awarded custody of the children to the wife because the husband had told the children that their mother did not love them and was immoral. The exception is to that judgment.
When the parents of these two minor girls were divorced in 1947, the court awarded custody to the father. The law of res judicata applies in such cases; and when that award was made, the court may thereafter exercise a discretion as to the custody of the children only in so far as there may be new and material conditions and circumstances substantially affecting the interest and welfare of the children. Willingham v. Willingham, 192 Ga. 405 ( 15 S.E.2d 514); Brooks v. Thomas, 193 Ga. 696 ( 19 S.E.2d 497); Jordan v. Jordan, 195 Ga. 771 ( 25 S.E.2d 500); Fuller v. Fuller, 197 Ga. 719 ( 30 S.E.2d 600); Fortson v. Fortson, 197 Ga. 699 ( 30 S.E.2d 165). The main question to consider, on the petition based upon such new conditions, is the interest and welfare of the children. Code, §§ 30-127, 74-107, McDowell v. Gould, 166 Ga. 670 ( 144 S.E. 206). Thus, in such a case, the judge must find two things: (a) that there has been a change in conditions affecting the children, and (b) that the welfare of the minors requires a modification of the original judgment. These findings must be made from the evidence produced and by the exercise of sound discretion.
There has been no legal definition of the new or changed condition necessary to warrant a change of custody, but it must be such as substantially affects the welfare of the minors. Although the judge is given wide discretion in such cases, nevertheless, he is restricted to the evidence, and hence he is unauthorized to change custody where there is no evidence to show new and material conditions that thus affect the welfare of the children. We do not understand this rule to mean that the court will or can dictate minor policies and practices of the parent having custody, even though the court might be of the opinion that they are not the best for the child's training.
There is quite an interesting and no doubt wise discussion in Fuller v. Fuller, 197 Ga. 719, 725 (supra), which strongly disapproves of the parent talking to the children about the other parent in an uncomplimentary manner even though it be true, but that was obiter and did not constitute a ruling of this court.
Opinion evidence was offered to the effect that these minors were not properly supervised as to sanitation, but this was so completely overwhelmed by those in position to know until the trial judge obviously discredited it, for he expressly placed his judgment upon the admission of the father that he told the children that their mother was immoral and that she did not love them. The testimony of the father in that connection shows that he did this with no malicious intent, but because he believed it the proper way to handle a bad situation. He said that he had never taught them to disrespect their mother, that he knew that there was talk in the community about their mother, and knew that they would hear it; and that for this reason alone he told them rather than have them hear it from others. Whether or not his decision was wise is debatable, for there are strong arguments on both sides of that question. Nevertheless, it was an act of a father doing what he thought was best, and he should not be deprived of the custody of the children because of it.
The original decree awarding custody to the father was conclusive proof that he was entitled to continued custody, unless it appeared that new and material conditions affecting the interest and welfare of the minors had arisen since the rendition of that decree. Fortson v. Fortson, supra. The evidence here does not show such new and material conditions.
In rendering this decision we realize that the law empowers the trial judge and not the Justices of the Supreme Court to exercise a sound discretion in such cases, but this court is required to exercise sound judgment in reviewing the trial judge, and to reverse his judgment if there has been an abuse of discretion. There was no claim that the mother's condition had improved. On the contrary, it was shown and not denied that the mother worked sometimes at night; that her sister with a general bad reputation for sobriety and chastity lived with her and their mother. Undoubtedly this condition cannot be beneficial to the children. The conditions of the judge's order indicate his concern about the circumstances. We therefore must hold that it was an abuse of discretion to award custody to the mother, and deprive the father of his rights under the original judgment when he was guilty of no wrong, and was taking good care of the children.
Judgment reversed. All the Justices concur.