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Lawskills.com Georgia Caselaw
NORTH v. NORTH.
18237.
Petition to modify divorce decree. Before Judge McClure. Walker Superior Court. March 4, 1953.
WYATT, Justice.
1. There is no merit in the motion to dismiss the bill of exceptions in this court.
2. The judgment of the court below sustaining a general demurrer to the petition was not error.
3. It was not error to sustain a general demurrer to a motion to vacate and set aside the judgment in this case.
Mrs. Laura Frances North brought this petition against John North Jr., seeking to modify certain provisions regarding custody of a minor child, which were included in a decree of divorce granted between the parties. The decree awarded permanent custody of the child to petitioner. It further provided that the father should be permitted to visit the child at reasonable times; should be permitted to take the child into his home every other Sunday until the child reached the age of 18 months; that, after the child reached 18 months of age, the father was to have custody of the child every other week end and for a period of two weeks during the summer of each year beginning in 1952, or for a period of time equal to the vacation period of the father, not to exceed three weeks. The decree further provided that the child was to remain within the jurisdiction of the court except at such times as either of the parties hereto may carry the child, in their custody, beyond the jurisdiction of the court on temporary visits or on vacations. Any such visit should not extend to such length of time as to affect materially the provisions of the decree. The court retained jurisdiction of the cause and the parties.
The petition then alleges in substance that petitioner has become engaged to marry a named person who is employed in Chillicothe, Ohio, and that after the marriage petitioner will reside in Chillicothe, Ohio, with her husband; that the minor child is a female child now 21 months old, and that it will be to the best interest of the child to reside with the mother; that the contemplated residence is approximately 350 miles from the residence of the father; and that it would be impractical to return the child to the father's residence every other week-end and would work an extreme hardship on the child; that she and her future husband have established a good home for the child in Chillicothe, Ohio; and that these changes substantially affect the welfare of the child.
It is prayed that the decree be modified so as to permit the child to reside without the jurisdiction of the court and to change the father's period of custody to a period of time during the summer vacation; that the decree be temporarily modified to permit the child to remain in the home of petitioner's father until further order of the court.
The defendant filed a general demurrer to the petition, and the demurrer was sustained and the petition dismissed. To this ruling the defendant excepted.
Petitioner then filed what she called a motion to vacate and set aside the judgment rendered on demurrer. Defendant filed a general demurrer to the motion which was duly sustained. Petitioner excepted to this judgment.
1. The defendant contends that the bill of exceptions was not filed within twenty days from the date of the judgment complained of as required by Code (Ann.) 6-902, and should therefore be dismissed. There is no merit in this contention. The record shows that the judgment on demurrer was rendered on February 14, 1953, and that the bill of exceptions was tendered to the judge on March 4, 1953, which was within twenty days of February 14, 1953.
2. It will be noticed that the only change in condition that is alleged in the petition is that petitioner has become engaged to marry a named man who works in Chillicothe, Ohio. All of the other alleged changes are not changes which have occurred, but are merely changes which are contemplated for the future. It is settled law in this State that the remarriage of a parent alone is insufficient to authorize a modification of an award of custody of a minor child. Carney v. Franklin, 207 Ga. 39 (59 S. E. 2d, 909); Shields v. Bodenhamer, 180 Ga. 122 (178 S. E. 294). An engagement to marry would likewise be insufficient.
While the probabilities may be high that the alleged changes contemplated for the future will occur, it is by no means certain that they will. Events which might happen in the future, no matter how substantial they may be, can not authorize a modification of a decree until they come to pass. Therefore the judgment of the court below dismissing the petition on general demurrer was not error.
3. It was not error to sustain the general demurrer to the so-called motion to vacate and set aside the judgment on the general demurrer to the petition. The motion in question does not complain of any defect appearing on the face of the record as required by Code 110-701 and 110-702. It is merely an attempt to amend a petition that has already been dismissed on general demurrer. It follows, the judgment dismissing the motion on general demurrer was not error.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., and Head, J., not participating.
Gleason & Painter, contra.
John E. Wiggins, for plaintiff in error.
ARGUED JUNE 8, 1953 -- DECIDED JULY 14, 1953.
Saturday May 23 04:20 EDT


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