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Lawskills.com Georgia Caselaw
BARBER v. WELLS et al.
19550.
Habeas corpus. Before Judge Lilly. Lowndes Superior Court. September 21, 1956.
HEAD, Justice.
The petition for habeas corpus by the mother against the paternal grandparents to obtain custody of her minor child sufficiently alleged facts and circumstances, arising since the former decree, materially affecting the interest and welfare of the child. It was error to sustain the demurrer and dismiss the petition.
Mrs. Emma Wells Barber filed a petition for habeas corpus to obtain the custody of her son, Kenneth Wells, 6 years of age, against Mr. and Mrs. M. C. Wells, the paternal grandparents. The defendants filed general and special demurrers to the petition, and to the petition as twice amended. The general demurrers and certain special demurrers were sustained and the petition was dismissed. The exception is to that judgment.
The petition alleged that, in a divorce action between the petitioner and Russell H, Wells (the son of the defendants), custody of their three minor children was awarded to the defendants on November 20, 1952. The petition, as amended, contains allegations to the effect that the petitioner did not know that her lawyer in the divorce action would ask the court to award custody of the children to the defendants, that she never consented, and would not have consented, to such an award of custody, and that she did not testify in person in the divorce action. From the allegations of the petition, as amended, it appears that the two older children, Gene Wells, a girl 17 years of age, and Harry Wells, a son 13 years of age, are voluntarily living with the petitioner without objection by the defendants. The petition, as amended, further alleged: The father, Russell H. Wells, has been in the home of the defendants a number of times since the divorce decree, on furlough from the State Sanitarium, at the instance of the defendants. The father is dangerously insane, and the petitioner is advised and believes that his insanity is caused by paresis of the brain. During the time that he is in the home of the defendants, the father curses and uses profane language in the presence of the child, Kenneth Wells, and the defendants make no effort to restrain him. The father gets mad at the minor child, does not want him to play in his presence or with children in the neighborhood. He has threatened to take the life of the child, and he intends to do violence and harm to him. The conduct of the father makes the child extremely nervous, and makes the home of the defendants an unfit and improper place for the child to reside. The defendants permit the child to go swimming and to do other dangerous acts unsupervised. The defendants are incompetent by reason of their old age (70 and 66 years, respectively) to have the custody of the child. On the occasions when the child's brother and sister visit him, the defendants talk about the petitioner, call her all kinds of names, make false charges against her, and the defendant M. C. Wells has threatened the life of Gene Wells because she will not leave the home of the petitioner and live with the defendants.
The allegations of a pleading are to be construed most strongly against the pleader when attacked by general demurrer. Lee v. City of Atlanta, 197 Ga. 518, 520 (29 S. E. 2d 774). A general demurrer, however, goes to the whole pleading to which it is addressed, and should be overruled if any part is good in substance. "The bad part in pleading does not make the whole bad; the good part makes the whole good enough to withstand a general demurrer." Blaylock v. Hackel, 164 Ga. 257, 258 (5) (138 S. E. 333); Beasley v. Anderson, 167 Ga. 470 (146 S. E. 22); Field v. Jones Mercantile Co., 182 Ga. 142 (3) (184 S. E. 882); Morris v. Morris, 185 Ga. 533 (195 S. E. 734); Helton v. Shellnut, 186 Ga. 185 (197 S. E. 287); Bailey v. Bell, 208 Ga. 715, 717 (69 S. E. 2d 272).
Strict technical pleading will not be required in a habeas corpus proceeding involving the custody of minor children. Where the writ has been issued and the court has jurisdiction of the cause, the better practice is to inquire into the evidence pertaining to a proper decision, unless the petition alleges facts which show affirmatively that the respondent is entitled to the custody. Sheppard v. Sheppard, 208 Ga. 422 (67 S. E. 2d 131).
In the present case the allegations of the petition, as amended, with reference to the failure of the petitioner's attorney to properly advise her or represent her in the divorce action, are insufficient to charge fraud on the part of the attorney.
The allegations of the petition as to the present mental condition of the father and his conduct and attitude toward the minor child are sufficient to raise an issue as to whether or not conditions substantially affecting the interest and welfare of the child have arisen since the date of the divorce decree. The alleged conduct of the defendants when the child is visited by his brother and sister, if supported by competent evidence, would likewise require consideration by the court.
Counsel for the defendants, with reference to the conduct of the insane father, assert that his actions "are but the ordinary, expected, and usual actions of one whose judgment has been dethroned," which "happened before the divorce was obtained, and is now but a periodic continuation of the pre-existing condition." This contention does not appear to be authorized by the allegations of the petition. The mother alleges, on information and belief, that the father of the child is presently suffering from paresis of the brain, and the petition contains no allegations as to the father's conduct based on his mental condition prior to the divorce action.
Under the rules of law applicable to habeas corpus, involving the custody of minor children, the trial judge should have inquired into the father's alleged insanity and his conduct and attitude as related to the minor, Kenneth Wells, and whether or not the home of the defendants is presently a proper place to rear a minor of tender years. It was error to sustain the demurrers and dismiss the action.
Judgment reversed. All the Justices concur.
H. C. Eberhardt, Franklin, Eberhardt, Barham & Coleman, contra.
Jesse T. Edwards, for plaintiff in error.
SUBMITTED JANUARY 14, 1957 -- DECIDED FEBRUARY 11, 1957,
Saturday May 23 01:37 EDT


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