Mathews v. Mathews

199 S.E.2d 179, 230 Ga. 779, 1973 Ga. LEXIS 1064

• Court: Supreme Court of Georgia
• Decided: July 3, 1973
• Docket: 27923
• Status: Published

Opinions

Per curiam.

In a divorce action by Mary E. Mathews against her husband, M. C. Mathews, the trial judge, after a lengthy hearing, entered an order on September 29, 1972, "placing temporary custody of Laura Mathews, Denise Mathews, M. C. Mathews, Jr., and Dee Mathews under the complete temporary custody and control of their mother, the plaintiff, Mary E. Mathews.” The order further gave the right of visitation to the husband, M. C. Mathews, "every other weekend from Friday at 6:00 P.M. until Sunday at 6:00 P.M.” Thereafter, Mary E. Mathews, appellant herein, filed a petition to modify her temporary order in certain particulars and asked the court to adjudge the appellee, the husband, in contempt for violation of his order of September 29, 1972. The petition alleged that the father had used vulgar, profane, obscene and derogatory language about appellant to the children keeping the children upset during the entire period of visitation and keeping them up until very late hours at night making them arise at a very early hour in the morning. This petition to modify came on regularly to be heard on the 27th day of October, 1972, and as the result of said hearing an order was entered allowing a moratorium on visitation by the appellee with the two younger children, M. C. Mathews, Jr., and Dee Mathews, as follows: "In lieu of the aforesaid visitations the defendant shall have the privilege of visiting with the minor children, M. C. Mathews, Jr., and Dee Mathews, at the residence of the plaintiff on every other Sunday afternoon between the hours of 1:00 p.m. and 5:00 p.m. with the further provision that the mother of the plaintiff, Mrs. O. J. Brackett, shall be in attendance during such visitation.” Further problems developed between the appellant and the appellee, and on January 12, 1973, a citation for contempt was filed by the mother against the father. The citation for contempt alleged violation of the modification order of the court and asked the appellee be adjudged "in contempt of the Cherokee Superior Court and lodged in the common jail of Cherokee County until he shall have purged himself of the contempt of the court.” During this hearing on the citation for contempt held February 2,1973, a further order was entered removing temporary custody from the appellant mother and placing temporary custody of the minor children in the grandparents. This order reads as follows: "Temporary custody of the minor children of the parties, to wit: Laura Mathews, Denise Mathews, M. C. Mathews, Jr., and Dee Mathews is placed in the maternal grandparents, Mr. and Mrs. O. J. Brackett, from Sunday at 2:00 p.m. through Friday afternoon at 4:30 p.m. of each week and in Mr. and Mrs. W. A. Mathews, the paternal grandparents from Friday afternoon at 4:30 p.m to Sunday afternoon at 2:00 p.m. with either party having equal right of visitation. Further, the paternal grandparents, Mr. and Mrs. W. A. Mathews, shall have temporary custody of said children on each holiday. Grandparents shall be responsible for the supervision of school attendance, visitation and training of said minor children.” The mother appeals from this order. The trial judge signed a certificate for immediate review.

The errors enumerated are: (1) The trial court erred in entering its order dated February 2, 1973, entered February 8, 1973, which on hearing for citation for contempt brought by the appellant against the appellee changed temporary custody of the minor children of the parties from the custody of the appellant and vested said custody in the grandparents. (2) The trial court erred in ruling on a question of custody when only the issue of contempt was before it and no pleadings were pending raising the issue of custody. (3) The trial court erred in ruling on a question of custody when no notice was given to the appellant that the court was considering such issue during a contempt proceeding against appellee brought by appellant, particularly in a case where no defensive pleadings have been filed. (4) The trial court erred in ruling on a question of custody when its rule nisi order establishing the hearing specifically set forth that the appellee was to show cause on a specified date why the prayers of appellant’s citation for contempt should not be granted.

From the above enumerations of error, the sole question of law is whether the trial court erred in removing temporary custody of the minor children of the parties in this divorce action from the mother and placing the custody in the grandparents where the only pleadings filed in the case were the contempt citation against her husband and that the rule nisi order recited that the hearing was being held for the purpose of ruling on the contempt. The appellant in her appeal relied upon Hunnicutt v. Sandison, 223 Ga. 301 (2b) (154 SE2d 587) where it was held that "In a contempt proceeding the trial judge has no discretion to modify the terms of a decree for divorce and alimony.” Appellant also relied on Georgia Law of Children, p. 226, n. 94, where Professor Stubbs states: "But there is no authority to determine any question relating to custody in a contempt proceeding, even though the citation stem from a failure to comply with a court order in a divorce or alimony case. Hunnicutt v. Sandison, 223 Ga. 301, 154 SE2d 587 (1967).”

This court in a most recent decision, Foster v. Foster, 230 Ga. 658, 660, decided May 31, 1973, followed Graham v. Graham, 219 Ga. 193 (1, 3) (132 SE2d 66), and held as follows: "The authority of the presiding judge, frequently referred to as plenary, ... to control the custody of minor children (under age 14) pending a divorce suit between their parents is very broad, so that in the exercise of sound discretion the judge may from time to time, until the final decree is entered, modify his orders in this respect and transfer the possession of the children from the persons to whom custody was originally granted and commit them into the care of other and different parties . . .

"Where . . . the presiding judge pending a divorce suit places the minor children of the litigants in the possession of third parties prior to the final decree as authorized by Code Ann. § 30-127, . . . and Code § 30-206, such third parties . . . are mere temporary custodians of the children, agents of the court, appointed for the convenience of the judge to aid him in seeing that the children are adequately cared for until his further order.”

We have determined that the discretion of the judge is broad as long as the case is in the bosom of the court and no permanent custody has been granted as in the final divorce. The temporary custody hearing does not decide any final issues between the parties. In Foster v. Foster, supra, we held the child may be given to one person at one hearing and another person at another hearing. In view of the broad discretion given the trial judge in temporary award of custody, we are of the opinion that he did not abuse his discretion in placing the child with a third person pending the divorce suit and he had a right on his own motion to change the custody even in a hearing set to hear contempt.

Submitted May 14, 1973 Decided July 3, 1973. Holcomb & McDuff Frank D. Holcomb, Terry Willis, for appellant.

Judgment affirmed.

All the Justices concur, except Undercofler and Hawes, JJ, who dissent.