Stout v. Pate

209 Ga. 786 (1953)

75 S.E.2d 748

STOUT v. PATE.

18157.

Supreme Court of Georgia.

Argued March 10, 1953.

Decided April 14, 1953.

Rehearing Denied May 13, 1953.

Hugh G. Head Jr. and Miller & Head, for plaintiff in error.

Nall & Sterne, Clarke & Anderson and Clint J. Morgan, contra.

DUCKWORTH, Chief Justice.

The exception here is to a final judgment modifying a previous judgment of the court awarding custody of minor children; and in the order the court states that from the evidence in the case it "may be further modified at this time because of the change *787 of conditions and circumstances arising from the following: (1) that the plaintiff, Mrs. Myrtis Trimble Pate Stout, has taken up residence in California." Held:

1. While a change of residence of one of the parents, in and of itself if there be nothing in the previous order preventing the removal of the children from the State would not be such a change of circumstances and conditions affecting the interest and welfare of the children as to authorize a modification of the judgment for that reason alone, yet, in this case, there is no brief of evidence in the record and this court has no way of considering the change of conditions and circumstances arising out of the removal of Mrs. Stout to California which the court below had in evidence before it at the time of the hearing, and, for this reason, no review of his judgment can here be made. Register v. Colter, 171 Ga. 439 (155 S. E. 767); Odom v. Odom, 205 Ga. 767 (55 S. E. 2d, 148).

2. But the court did commit error in attempting to reserve exclusive jurisdiction of the custody of the children in the future, since it is always in the breast of our courts to consider further changes in circumstances and conditions affecting the interest and welfare of minor children, and no one court can retain exclusive jurisdiction thereof. However, the error is harmless since that part of the order of the court is mere surplusage and does not take from the order its finality. See Fortson v. Fortson, 200 Ga. 116 (35 S. E. 2d, 896); Burton v. Furcron, 207 Ga. 637 (63 S. E. 2d, 650); Hanson v. Stegall, 208 Ga. 403 (67 S. E. 2d, 109).

Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.