GIBSON v. WOOD., 207 Ga. 282, 61 S.E.2.d 125 (1950)

Status: DECIDED

Docket Number: 17182

Parts: ATKINSON, Presiding Justice.

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Gleason & Painter, for defendant,J. Paxson Amis, for plaintiff.

Where the losing party desires to except to a judgment awarding the custody of a child, the proper procedure is by direct exceptions to the decree, and not by motion for a new trial.

Billie Gibson filed in Whitfield Superior Court, against Mary Sapp Wood, a petition seeking to modify former orders awarding the custody of their minor child, Cheryl Ann, on account of subsequent acts of misconduct on the part of the defendant mother, which it was alleged rendered her an unfit person to have custody of the child.

and thereafter on one week-end after the expiration of each 30 days. The custody of the child, except as above indicated, was continued in the father to be kept at the home of her paternal grandparents, where the mother could see her at any reasonable and convenient time.

The father made a motion for a new trial, which was amended by the addition of four special grounds merely amplifying the general grounds. The amended motion for new trial was dismissed on oral motion of counsel for the mother, on the ground that a direct bill of exceptions was the proper procedure. To the above ruling the father excepted.

(After stating the foregoing facts.) The Code, 30-127, declares: "In all cases of divorce granted, the party not in default shall be entitled to the custody of the minor children of the marriage. The court, however, in the exercise of a sound discretion, may look into all the circumstances, and, after hearing both parties, make a different disposition of the children." In Johnson v. Johnson, 131 Ga. 606 (1) (62 S. E. 1044), it was said in the opinion: "This section of the Code contemplates that the judge, and not the jury, shall dispose of the children of the marriage. If the court should award the custody to the mother, and the father desired to except to the decree in this particular, error should be assigned upon the decree. It is not a ground for new trial."

The above requirement for a direct bill of exceptions and not a motion for a new trial, in the event a losing party desires to except to a judgment awarding the custody of children, constitutes an exception to the general rule that, "where the issues of a case are submitted to the judge, without the intervention of a jury, for his decision upon all matters of fact and of law, and he renders a judgment therein in term time, the losing party may review the judgment either by a direct bill of exceptions or by a motion for a new trial." Chance v. Simpkins, 146 Ga. 519 (91 S. E. 773); Pace v. Shields-Geise Lumber Co., 147 Ga. 36 (92 S. E. 755); Martin v. Ware, 179 Ga. 733 (177 S. E. 765). See also Jones v. Bank of Lula, 135 Ga. 680 (70 S. E. 648); Crumbley v. Brook, 135 Ga. 723 (70 S. E. 655): Phillips & Crew Co. v. Jones & Hancock, 139 Ga. 160 (4) (76 S. E. 1019); Wilson & Co. v. Millner, 29 Ga. App. 265 (116 S. E. 122); Goldsmith-Leslie Co. v. Whitehead, 41 Ga. App. 287 (2) (152 S. E. 589); Morris v. Shaw, 44 Ga. App. 222 (7) (160 S. E. 820).

Accordingly, the trial court did not err in dismissing the motion for new trial on the ground that a direct bill of exceptions was the proper procedure.

Judgment affirmed. All the Justices concur.