Gibson v. Wood

Supreme Court of Georgia

Gibson v. Wood

74 S.E.2d 456, 209 Ga. 535, 1953 Ga. LEXIS 310

CourtSupreme Court of Georgia

DecidedFebruary 9, 1953

Docket18086

StatusPublished

Cited by5 cases

This text of 74 S.E.2d 456 (Gibson v. Wood) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gibson v. Wood, 74 S.E.2d 456, 209 Ga. 535, 1953 Ga. LEXIS 310 (Ga. 1953).

Pincite

Opinion

Duckworth, Chief Justice.

The exception here is to a judgment awarding custody of a minor child to her mother in a habeas corpus proceeding against the grandparents, the petitioner alleging changes in conditions and circumstances affecting the interest and welfare of the child. In addition, the judgment committed the grandfather of the child to jail until the child was “produced in court and delivered to her mother,” the court having previously awarded the custody of the child to the father “to be kept at the home of the grandparents.” Held:

1. While a habeas corpus proceeding will lie against persons having the actual physical custody of a minor child (Walker v. Steele, 206 Ga. 674, 58 S. E. 2d, 421), the evidence here does not show custody to be in the defendants, but, on the contrary, discloses the legal and physical custody of the child to be in the father, who is not a party to this action; and the court erred in awarding custody to the mother, since it was without jurisdiction to make such an award. Code, § 50-103; Girtman v. Girtman, 191 Ga. 173 (11 S. E. 2d, 782); Crowell v. Crowell, 190 Ga. 501 (9 S. E. 2d, 628).

2. Although the modified judgment awarding custody to the father recited that the minor should be kept at the home of the grandfather, such a judgment imposed no obligation upon the grandfather, and his failure to keep the child in his custody constituted no grounds whatever for the judgment imposing a prison sentence upon him for his failure to produce the child in court.

3. But even had the court had jurisdibtion, the evidence utterly fails to disclose any change of circumstances affecting the interest and welfare of the child which would authorize further modification of the custody decree, and the court abused its discretion in awarding custody to the mother. See Willingham v. Willingham, 192 Ga. 405 (15 S. E. 2d, 514); Fuller v. Fuller, 197 Ga. 719 (30 S. E. 2d, 600); Fortson v. Fortson, 197 Ga. 699 (30 S. E. 2d, 165); Elders v. Elders, 206 Ga. 297 (57 S. E. 2d, 83).

4. For all the foregoing reasons the judgment of the court should be reversed and set aside.

*536 No. 18086. Submitted January 13, 1953 Decided February 9, 1953. J. Paxson Amis and Malcolm C. Tarver, for plaintiff in error. D. W. Mitchell Jr. and William Gordon Mann, contra.

Judgment reversed.

All the Justices concur, except Atkinson, P. J., and Wyatt, J., not participating.

Free access — add to your briefcase to read the full text and ask questions with AI

Duckworth, Chief Justice.

The exception here is to a judgment awarding custody of a minor child to her mother in a habeas corpus proceeding against the grandparents, the petitioner alleging changes in conditions and circumstances affecting the interest and welfare of the child. In addition, the judgment committed the grandfather of the child to jail until the child was “produced in court and delivered to her mother,” the court having previously awarded the custody of the child to the father “to be kept at the home of the grandparents.” Held:

1. While a habeas corpus proceeding will lie against persons having the actual physical custody of a minor child (Walker v. Steele, 206 Ga. 674, 58 S. E. 2d, 421), the evidence here does not show custody to be in the defendants, but, on the contrary, discloses the legal and physical custody of the child to be in the father, who is not a party to this action; and the court erred in awarding custody to the mother, since it was without jurisdiction to make such an award. Code, § 50-103; Girtman v. Girtman, 191 Ga. 173 (11 S. E. 2d, 782); Crowell v. Crowell, 190 Ga. 501 (9 S. E. 2d, 628).

2. Although the modified judgment awarding custody to the father recited that the minor should be kept at the home of the grandfather, such a judgment imposed no obligation upon the grandfather, and his failure to keep the child in his custody constituted no grounds whatever for the judgment imposing a prison sentence upon him for his failure to produce the child in court.

3. But even had the court had jurisdibtion, the evidence utterly fails to disclose any change of circumstances affecting the interest and welfare of the child which would authorize further modification of the custody decree, and the court abused its discretion in awarding custody to the mother. See Willingham v. Willingham, 192 Ga. 405 (15 S. E. 2d, 514); Fuller v. Fuller, 197 Ga. 719 (30 S. E. 2d, 600); Fortson v. Fortson, 197 Ga. 699 (30 S. E. 2d, 165); Elders v. Elders, 206 Ga. 297 (57 S. E. 2d, 83).

4. For all the foregoing reasons the judgment of the court should be reversed and set aside.

*536 No. 18086. Submitted January 13, 1953 Decided February 9, 1953. J. Paxson Amis and Malcolm C. Tarver, for plaintiff in error. D. W. Mitchell Jr. and William Gordon Mann, contra.

Judgment reversed.

All the Justices concur, except Atkinson, P. J., and Wyatt, J., not participating.

Cite This Page — Counsel Stack

Bluebook (online)

74 S.E.2d 456, 209 Ga. 535, 1953 Ga. LEXIS 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-wood-ga-1953.

Opinion

Related

Cite This Page — Counsel Stack