Opinion
18120.
ARGUED FEBRUARY 9, 1953.
DECIDED MARCH 9, 1953.
Modification of divorce decree. Before Judge Kennedy. Richmond Superior Court. November 29, 1952.
Claud R. Caldwell, for plaintiff in error.
Pierce Brothers, contra.
The order excepted to is not a final judgment, and the writ of error must be dismissed.
No. 18120. ARGUED FEBRUARY 9, 1953 — DECIDED MARCH 9, 1953.
On September 25, 1952, a decree of total divorce was entered between the parties and custody of the minor child was awarded to the mother with the right of the father "to have the said child visit him for one week-end each month, with the right of reasonable visitation."
On October 29, 1952, the father filed a petition, in which he alleged that, since the date of the judgment and decree in the divorce case, the mother of the child had become an unfit and improper person to have custody of the child. It was further alleged that the mother was making preparation for remarriage, and that she intended to remove the child from the City of Augusta to the State of New York. He prayed that a rule nisi issue requiring the mother to show cause why inquiry should not be made by the court into the matters and things set forth in his petition. A rule nisi was duly issued and served.
At the conclusion of the hearing the court made no change of custody. It was ordered and decreed, however, that the mother of the child should provide a ne exeat bond in the sum of $500, with good and sufficient security, "the condition of said bond being that the said child will remain within the jurisdiction of the court." The exception is to that order.
When a decree for total divorce is duly entered and the custody of minor children is fixed by the decree, such decree is a final judgment and conclusive upon the parties on the facts as they then exist. The interest of the State as parens patriae is continuing, and when there is a change in circumstances materially affecting the interest and welfare of minor children, the decree awarding custody may be modified as the interest of such minor children may require. Williams v. Crosby, 118 Ga. 296 ( 45 S.E. 282); Bowers v. Bowers, 205 Ga. 761 ( 55 S.E.2d 152); Elders v. Elders, 206 Ga. 297 ( 57 S.E.2d 83).
In the present case the evidence did not sustain the allegations that the mother had become an unfit and improper person to have custody of her minor child since the decree in the divorce case. It developed from her testimony, however, that she was contemplating remarriage, and if the marriage should be consummated, she expected to remove the child to the residence of her prospective husband in New Jersey. She did not file any motion in arrest of the judgment requiring her to make a bond, or any motion to vacate and set aside this judgment.
The refusal to arrest a judgment, or the refusal to vacate and set it aside, is such a final judgment as may be excepted to in a direct bill of exceptions. See Code, § 110-703; Raney v. McRae, 14 Ga. 589 (60 Am. D. 660); Gardner v. State, 81 Ga. 144 ( 7 S.E. 144); Berger v. Saul Co., 109 Ga. 240 ( 34 S.E. 1036); Miraglia v. Bryson, 152 Ga. 828 ( 111 S.E. 655); Ivey v. State Mutual Insurance Co., 200 Ga. 835 ( 38 S.E.2d 601); Turner v. Avant, 205 Ga. 426 ( 54 S.E.2d 269).
"No cause shall be carried to the Supreme Court . . upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto; . ." Ga. L. 1946, pp. 726, 730 (Code, Ann. Supp., § 6-701). An order requiring a bond, such as was entered in this case, is not a final judgment, but a pendente lite ruling. It can not be the subject matter of a direct bill of exceptions. Prater v. Crawford, 143 Ga. 709 ( 85 S.E. 829); Peerless Laundry Co. v. Abraham, 193 Ga. 179 ( 17 S.E.2d 267).
Writ of error dismissed. All the Justices concur, except Atkinson, P. J., not participating, and Duckworth, C. J., who dissents upon the ground that the order complained of is final, and to deny a review as provided by law is a denial of due process of law.