Opinion
35940.
DECIDED DECEMBER 1, 1955.
Abandonment. Before Judge Alexander. Savannah City Court. August 16, 1955.
James W. Head, for plaintiff in error.
Andrew J. Ryan, Jr., Solicitor-General, Sylvan A. Garfunkel, Thomas M. Johnson, Assistant Solicitors-General, contra.
1. If after having lawfully left his children they become dependent, and the absent father then voluntarily and wilfully fails to support them, he violates the provisions of Code (Ann. Supp.) § 74-9902. Brown v. State, 122 Ga. 568 (2) ( 50 S.E. 378); Cleveland v. State, 7 Ga. App. 622 ( 67 S.E. 696); Phelps v. State, 10 Ga. App. 41 ( 72 S.E. 524); Sikes v. State, 37 Ga. App. 164 ( 139 S.E. 87).
2. "`The conduct of the child's mother, or her refusal to live with its father as her husband, is no defense to a prosecution for abandonment of the child. The father must support his child, whether it lives with him or with the mother; and if he desires the custody of the child, he must pursue his remedy to obtain its custody.' Parrish v. State, 10 Ga. App. 836 (2) ( 74 S.E. 445); Moore v. State, 1 Ga. App. 502 ( 57 S.E. 1016); Towns v. State, 24 Ga. App. 265 ( 100 S.E. 575); Mobley v. State, 41 Ga. App. 379 ( 153 S.E. 202)." Cannon v. State, 53 Ga. App. 264 ( 185 S.E. 364).
3. Under an application of the foregoing principles of law to the facts of the present case the State made out a case of abandonment which is not refuted by the evidence or the defendant's statement. While it appears that the defendant was unable to support the children during the period of time he was hospitalized for tuberculosis, which was from some time during the year 1952 to May 1954, and that he was unable to support them during his six-months rehabilitation period, and that his wife left him and had never lived with him since he went to the hospital, and that she took the children to Florida and remained there with them for a period of some five months, it appears without contradiction that the defendant did not support the children after the wife brought them back to Georgia in March of 1955 up to the time of the trial in July 1955. The only defense offered by the defendant was the conduct of his wife in refusing to live with him and to accept his offer of $6 a week for the children. The evidence, consequently, authorized the verdict, if it did not demand it. See in this connection, Heard v. State, 79 Ga. App. 601, 604 ( 54 S.E.2d 495).
4. In view of what has been said in the foregoing divisions of this opinion there was no error in any of the rulings complained of in the special grounds of the motion for a new trial. The charge was full and fair to the defendant, and the excerpts complained of were not error, nor did the court err in refusing to charge as requested.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED DECEMBER 1, 1955.
The defendant was tried and convicted under an accusation charging him with the wilful and voluntary abandonment of his two minor children. His motion for a new trial, based on the usual general grounds and 15 special grounds, was denied and he assigns error in this court upon that judgment.
The evidence reveals that some time during the year 1952 the defendant father was hospitalized with tuberculosis and was unable to support his wife and children as a result of his inability to work. Aid was obtained for the wife and children from the Welfare Department as a result. At the time of the defendant's hospitalization, he and his wife and one child were living at a named address in Chatham County, Georgia. The second child was born during the period of the defendant's hospitalization. In December of 1952, the hospital authorities permitted the defendant to return to his home for the Christmas holidays despite the wife's protestation that he not be allowed to leave the hospital. When he arrived at his home, the wife took the two children and departed and has never lived with the defendant since that time. The defendant returned to the hospital where he remained until May of 1954. During the time that the defendant was back in the hospital, the wife, together with the children, moved to another address in the same county. Following his dismissal from the hospital, the defendant was placed on a rehabilitation program for a period of six months during which he was unable to work and continued to receive aid from the Welfare Department. When he left the hospital the defendant went to his wife's new address, but she would not allow him to stay there. The Welfare Department informed the wife that she would not continue to receive money for herself and the children unless she lived with the defendant and the payments were discontinued. On October 5, 1954, during the rehabilitation period, the wife sued out a warrant for abandonment against the husband but the matter was never pursued in the courts. In November of 1954, the wife, without informing the defendant, left Georgia, taking the two children to Florida, where she and they remained for a period of approximately five months. She returned to Georgia with the children some time during the month of March, 1955. At some time prior to her departure for Florida, the defendant gave the wife $10 for the support of the children, and some time just prior to Easter he purchased shoes for the children. On one other occasion the defendant gave the wife another $10 for the children, but between that time (five or six months before the trial) and the time of the trial in July of 1955 he contributed nothing more to the support of the children, though he, on at least two occasions, had promised to do so.
The defendant in his statement to jury stated that he had never refused to take care of the children; that he got a job making $15 per week and when his check came from Atlanta he went out and gave the wife some money for the children; that when he returned again she had gone to Florida with the children; that he told the wife he would give her $6 per week for the support of the children if she would give him a receipt for the money, but she would not do so; and that the aid for the children from the Welfare Department was discontinued because the wife was living with another man.