Walker v. Steele

Supreme Court of Georgia1950-03-15No. No. 17027

206 Ga. 674

Summary · law.co

Holding. The trial court properly exercised its discretion in awarding custody to the mother based on a showing of material changes in the circumstances of both the current custodian and the mother since the original 1943 custody order. The judgment is affirmed.

Josephine Steele sought custody of her minor son through habeas corpus proceedings, challenging a 1943 juvenile court order that had placed the child with Mrs. Frank G. Azar, the uncle's sister. The trial court found that material changes in circumstances had occurred since the original custody award. Specifically, Mrs. Azar had divorced her husband and begun working outside the home, reducing her ability to provide personal attention to the child, while Mrs. Steele had remarried and achieved financial stability and the capacity to care for the child full-time. The trial court awarded custody to the mother based on these changed conditions.

The court affirmed the trial court's decision, holding that the judge properly exercised discretion in modifying the custody arrangement. The court found sufficient factual support for the determination that circumstances affecting the child's welfare had materially changed since 1943, warranting a reassessment of the custody order.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether habeas corpus jurisdiction exists when defendant has physical custody of the child
Whether material changes in circumstances justify modification of a custody order
Whether the trial court abused its discretion in awarding custody based on changed conditions

Procedural posture

The defendant appealed the trial court's judgment awarding custody of the minor child to the mother, challenging the modification of a 1943 juvenile court custody order.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Wyatt, Justice.

Josephine Steele filed in Fulton Superior Court a petition for habeas corpus, seeking the custody of her minor child, Lawrence G. Walker Jr., then alleged to be in the custody of Wade Walker, an uncle of the child. The defendant answered, alleging that the custody of the child was awarded to Mrs. Frank G. Azar, the sister of the defendant, on May 28, 1943, by the Juvenile Court of Fulton County, and that the child "visits in his home and attends Sacred Heart School with his two daughters.” The trial court awarded custody of the child to the mother, Mrs. Josephine Steele. The exception is to that judgment. Held:

1. The defendant in the court below had the actual physical custody of the minor child involved at the time the habeas corpus petition was filed and served. This was sufficient to give to the trial court jurisdiction to inquire into the question of the custody of the child. See Drake v. Drake, 187 Ga. 423, 427 (1 S. E. 2d, 573).

2. The trial court was authorized to find that, at the time of the judgment awarding custody of the child here involved to Mrs. Azar in 1943, she was married, lived with her husband, who was able to support the child ; and that, so long as she lived with her husband, she carried the child to school, and was in position to give the child her personal attention; but that, at the time the judgment in the instant case was rendered, she was divorced from her husband and worked away from her home, and was, therefore, unable to give the child her personal attention, and had placed the child in the home of her brother so that he could attend school with the children of her brother. The trial court was also authorized to find that, at the time the judgment in 1943 was rendered, the mother, Mrs. Josephine Steele, was divorced from her husband, was unable to support the child, worked away from home, and was unable to give the child her personal attention; but that, when the judgment in the instant case was rendered, she had remarried, and is now able to support the child, live in the home with the child, and give him her personal attention; that the plaintiff in error, since the separation of Mrs. Azar from her husband about two years ago, has had custody of the child most of the time, certainly all of the time except weekends, when school is in session. These facts were entirely sufficient to support the finding of fact by the trial judge that there had been a change in conditions, both as to the mother and as to Mrs. Azar, since the judgment was rendered in 1943, and that the change affected the welfare of the child. The trial court having so found and, as above indicated, there being sufficient facts upon which to base this finding, this court can not disturb the judgment, since no abuse of discretion is made apparent. See Code, i 50-121; Hill v. Rivers, 200 Ga. 354 (37 S. E. 2d, 386); Sessions v. Oliver, 204 Ga. 425 (50 S. E. 2d, 54), and cases cited in these opinions. It follows, from what has been said above, the judgment of the tidal court must be affirmed.

Judgment affirmed.

All the Justices concur.

Barrett & Hayes, for plaintiff in error.

Swift Tyler and Marvin O’Neal Jr., contra.