Opinion
18028.
SUBMITTED NOVEMBER 13, 1952.
DECIDED JANUARY 13, 1953.
Alimony, etc. Before Judge McClure. Walker Superior Court, August 30, 1952.
G. W. Langford and Shaw Shaw, for plaintiff in error.
Gleason Painter and Fariss Fariss, contra.
1. A contract made by an infant wife and her husband, wherein she waives her parental control of their minor child, is not binding upon her and does not preclude her from applying to a court of competent jurisdiction for custody of that child.
2. In an action for alimony and custody, a new trial will not be granted where the verdict is predicated on evidence of cruel treatment not alleged in the pleadings, and no objection was made to its introduction, as the petition, by amendment, could have been made to conform to the proof rendering the evidence relevant.
No. 18028. SUBMITTED NOVEMBER 13, 1952 — DECIDED JANUARY 13, 1953.
The petition brought by Ella Mae Walker by next friend, Charles Autrey, against Alvin W. Walker, is one involving custody of a minor child and alimony. The petition, as amended, alleges: that the plaintiff, as a minor fifteen years of age, signed an agreement relinquishing custody of her minor child to her husband, the defendant and father of the child, but that this agreement was void because of her minority and lack of consideration, and the law of Georgia, which does not require the enforcement of a contract respecting the custody of a child as between the parents unless embodied in a decree of the court, and because the agreement was fraudulently procured — the wife, being afflicted with epilepsy, did not understand the meaning and importance of the agreement, and believed the signing of the agreement was to bring about a reconciliation with her husband, who induced her to sign it; that, after signing the agreement, the defendant, instead of reaching a reconciliation with her, took her to her mother's home, left her, and refused to live with her, returning to the home of his parents with the child; that the child did not receive the proper care and attention, and it not in the custody of the defendant but in the custody and control of his mother; and that he is an unfit person to have the custody and care of the child. The petition fails to allege cruel treatment to the petitioner, but does allege cruelty to the child, and the prayers are for custody of the child, alimony for the support of the petitioner and her child, attorney's fees, and for general relief.
To the petition as amended the defendant filed general and special demurrers and an answer. The special demurrer contends that the plaintiff, being of sufficient age to contract marriage, was competent, notwithstanding her minority, to contract for and in connection with any and all things growing out of the marriage relationship; that the child, being the subject matter of the agreement, was an issue of a valid and legal marriage contracted by the plaintiff, and that she was competent, as a matter of law, to agree as to the custody of the child; that a parent may voluntarily surrender possession of a child and a consideration therefore is unnecessary; and that the allegations with reference to fraud in the procurement of the agreement were insufficient to constitute fraud. The answer, properly filed, denied, in the main, the issues and allegations of the petition. The court sustained the second ground of the special demurrer and struck from the petition the allegation that the agreement with reference to the custody of the child was void because of the fact that it was without consideration. The general demurrer and the other grounds of the special demurrer were overruled, and to this ruling the defendant filed his exceptions pendente lite.
The case proceeded to a trial before a jury, where the plaintiff contended by her evidence; that the defendant had been guilty of cruel and inhuman treatment toward her and their child so as to make it impossible for her to live with him and, for this reason, she had left him; that thereafter he and his father carried her to a lawyer to draw up the agreement, which they both signed; that, although she was able to, she did not read it but it was read to them, and, although she did not understand it or pay any attention to it, she signed it since she thought she was going back to live with her husband, as he had told her the papers she was to sign would get them back together; that, when they returned to her parent's home, he refused to take her with him but departed with the baby and its clothes. Other witnesses for the petitioner sustained her testimony except the testimony as to the agreement. The defendant denied the testimony of the witnesses for the plaintiff, and testified as to his ability to care for the child. His testimony was sustained, in part, by the evidence submitted by him.
The case was submitted to the jury by the charge of the court on the theory of a contention of the plaintiff that the separation was brought about by the cruel and inhuman treatment of the defendant toward the plaintiff, that the plaintiff had left the defendant, and that they should look to the conduct of the parties in determining their verdict. The jury returned a verdict in behalf of the plaintiff and, based on his verdict, the judge entered a decree in accordance therewith providing for the custody of the child, part time in the plaintiff and part time in the defendant. A motion for new trial, as later amended, was overruled, and the bill of exceptions is to this final judgment and also contains the exceptions filed previously.
1. An exception to the general rule as to contracts of an infant, under the age of 21 but of the lawful age to marry, is to make marriage contracts and settlements binding as if made by adults. Code, § 20-204. However, the exception above applies only to prenuptial contracts and settlements and not to a contract such as here, in which the infant wife voluntarily relinquishes her parental control of her child to the father during their separation but without a decree of court thereon. Sellers v. Sellers, 160 Ga. 516 ( 128 S.E. 659). Marriage does not remove the disabilities of infancy unless it is so provided for by statute. 43 C. J. S. 91, § 29, Infants. Therefore, since the Georgia law merely provides certain exceptions to the general rule as to contracts by infants and these do not expressly cover such a contract as here, it follows that the contract of this child is not binding upon her. See Code, Ch. 20-2. Accordingly, the lower court did not err in overruling the general and special demurrers to the amended petition for alimony and custody of the minor child, since it alleges a cause of action, and the agreement between the husband and the infant wife, wherein she voluntarily relinquished custody to the father, would not bar an action for custody of the child.
2. All the special grounds of the amended motion for new trial are predicated on the theory that the petitioner failed to plead cruel treatment as a cause of the separation of the parties, and, she having pleaded desertion, the verdict and judgment was upon evidence of cruel treatment. Yet there was apparently no objection to the evidence offered, proving the cruel treatment of the husband, and the complaints are upon excerpts from the charge of the court on the conduct of the respective parties and upon the variance between the evidence and the allegations of the petition. If a party permits evidence to go to the jury without objection, and the jury find on that evidence, he is not entitled to a new trial on the ground that the allegations and the proof do not correspond. Haiman Bro. v. Mosses, 39 Ga. 708; Savannah, F. W. Ry. v. Barber, 71 Ga. 644. It is also settled law that, if a charge of the jury is not authorized by the pleadings, but relates to matters germane to the alleged cause to action which could have been alleged by amendment to the original petition, and evidence as to such matters is admitted without objection, the charge will not require a reversal of the judgment refusing the defendant's motion for new trial on the ground it was not authorized by the pleadings. Tietjen v. Dobson, 170 Ga. 123 ( 152 S.E. 222); McCullough v. Kirby, 204 Ga. 738 ( 51 S.E.2d 812). Such an amendment alleging cruel treatment would not introduce a new cause of action in this case. See Zachary v. Zachary, 141 Ga. 404 ( 81 S.E. 120); Phinizy v. Phinizy, 154 Ga. 199 ( 144 S.E. 185); Newton v. Newton, 196 Ga. 522 ( 27 S.E.2d 31). Accordingly, none of the grounds of the amended motion requires a reversal of the judgment on the theory that the verdict was not authorized by the pleadings.
The evidence being sufficient to support the verdict, the general grounds of the motion for new trial are also without merit.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.