Oliver v. Oliver

165 S.E.2d 863, 225 Ga. 61, 1969 Ga. LEXIS 379

• Court: Supreme Court of Georgia
• Decided: January 23, 1969
• Docket: 25029
• Status: Published

Opinion

Duckworth, Chief Justice.

This is a habeas corpus action involving the custody of a minor child awarded to the mother by a court in Michigan. The mother brought the action in this State, and the father filed an answer alleging changes of circumstances affecting the interest and welfare of the minor. The evidence consists of admissions in the pleadings of the Michigan decree awarding custody to the mother and conflicting testimony as to the unfitness of the mother. After hearing evidence on the petition and cross action the court awarded complete custody and control to the mother and sustained the writ. Held:

1. While the first enumeration of error complains that the court erred in holding that the original award in Michigan, under the full faith and credit clause of the United States Constitution (Art. IV, Sec. I; Code § 1-401), is res judicata as to a subsequent claim of custody based on changes of conditions affecting the child’s welfare, the lower court’s final order did not so rule. See Bettes v. Bettes, 223 Ga. 732 (157 SE2d 742).

Submitted January 14, 1969 Decided January 23, 1969. Paul C. Myers, for appellant. William L. Gower, for appellee.

2. The second enumeration complains that the evidence demanded an award of custody to the appellant and that the court erred as a matter of law. While the evidence was conflicting in that the 11-year-old child and expert witnesses testified as to the unfitness, the mother denied the same, and the court cannot hold as a matter of law that the lower court abused its discretion in remanding the child’s custody to the mother. See Bettes v. Bettes, supra, and cases cited therein, page 734.

Judgment affirmed.

All the Justices concur.