1. In habeas corpus cases between parents involving the custody of their minor children, the law places upon the trial judge who sees and hears the parties and the witnesses, and who necessarily has superior opportunity for determining correctly the issue involved, which is the welfare and best interest of the children, the duty of exercising a sound discretion, and an award made by the judge based upon the evidence, and in the exercise of this sound discretion, will not be controlled by this court.
2. Where no exceptions pendente lite were properly filed to rulings excluding evidence, exceptions to such rulings contained in the bill of exceptions presented more than twenty days after the date of the rulings complained of come too late and can not be considered.
Nos. 16558, 16588. MARCH 16, 1949. Robert E. Good filed his petition for a writ of habeas corpus, in Jenkins Superior Court, against Helen P. Good, alleging in substance: that the plaintiff and defendant are husband and wife, living separate and apart, and are the parents of two minor children, a girl, age 3, and a boy, age 4, both of whom are in the custody of the defendant; that the plaintiff is a resident of Rock Hill, South Carolina, and is a fit and capable person to have the custody and control of these children and is able to support them; that the defendant refuses to live with him, and refuses to permit him to have the custody of their children; that the mother is an unsuitable and improper person, for reasons alleged in the petition, to have the custody of the children, and is incapable of properly caring for them; and praying that the writ of habeas corpus issue, and that after hearing the custody of the children be awarded to him.
The defendant filed her response in which she admitted that she and the plaintiff are husband and wife, living separate and apart, and that the children are in her custody, and alleging substantially: that the allegations of misconduct on her part are untrue; that she has provided the best of care for the children; that the plaintiff was morally unfit to have the custody of the children, and was incapable of properly caring for them; that she was both fit and capable of providing properly for them; that the plaintiff had committed certain acts of misconduct upon her, which caused her to separate from him, and which showed his *Page 113 moral unfitness to have the custody of the children, and prayed that she be given permanent and full custody.
The matter came on to be heard, and both parties introduced evidence in support of their contentions, the brief of the oral testimony appearing in the record consisting of 87 pages; photographs, photostatic copies of checks, letters, telegrams and other documentary evidence consisting of 15 pages, and 36 pages containing affidavits, 17 in behalf of the plaintiff and 7 in behalf of the defendant. After this hearing the trial court entered an order and judgment providing:
"This matter was heard by me on October 21, 1948, at Millen, Georgia. Much evidence was introduced, both oral and documentary, as well as affidavits made for the purpose of this hearing. The matter was taken under consideration.
"Section 74-107 of the Code of 1933 states the duty of the court in such matters. But it is not easy to determine what is for the best interest of children, and what will best promote their welfare and happiness. And it has not been easy to reach a decision in this case. But the court has come to this decision, to wit:
"1. The court awards the custody of the children named in the petition to their father, Robert E. Good, for the month of December, 1948, and the month of January, 1949; then to the plaintiff [defendant], Helen P. Good, for the months of February, March, April, and May, 1949; after the expiration of which time, to their father until September 1, 1949; then to their mother. In other words, beginning September 1, 1949, the custody of said children shall be in their mother for nine months; and the custody of said children shall be in their father for three months each year, viz, June, July, and August.
"2. It is expressly provided that the father shall come for said children, or pay the transportation for them to his home, at his own expense; and shall also deliver said children to the present home of their mother in Jenkins County, or pay the expense of their transportation there.
"3. It is also expressly provided that the mother has the right to visit said children while they are in possession of their *Page 114 father; and likewise the father has the right to visit said children while they are in the custody of their mother. All upon a three-day notice by one party to the other that the children may be on hand to see the visiting parent.
"4. The plaintiff in this case lives in Rock Hill, South Carolina; the defendant lives in Jenkins County, Georgia, with her parents. Before the plaintiff removes the children named in the petition, he is required by the court to give a good and solvent bond, conditional to return said children to the jurisdiction of this court on any occasion and demand by the court, and especially on the dates set forth herein, when his wife is to have their custody, in the sum of two thousand dollars, same to be approved by the Clerk of the Superior Court of Jenkins County, Georgia. All until the further order of the court."
To this judgment the defendant excepted by the main bill of exceptions, and is now the plaintiff in error; and insists that the trial court abused its discretion in awarding the custody of the children to the plaintiff for any part of the time, and that the exclusive control and custody should have been awarded to her; and the plaintiff, by cross-bill of exceptions, makes a similar assignment of error, the parties each contending that they should have been awarded exclusive custody and control of the children. Each party further assigns error on the failure of the court to hear additional evidence, reference to which assignments of error will be made in the opinion. 1. This court has held many times that, in a habeas corpus proceeding involving a contest between parents over the custody of minor children, the award made by the trial judge based upon the evidence, and in the exercise of a sound discretion, will not be controlled by this court. This is true for the reason that the law puts upon the trial judge the duty of exercising a sound discretion in such cases, looking always to the best interest and welfare of the children. He has the parties before him, he sees and hears the witnesses testify, and is in a much better position to determine what is to the best interest of the children *Page 115 than is this court, which must rely only upon the record.Weathersby v. Jordan, 124 Ga. 68 (2) (52 S.E. 83).
After a careful examination of the brief of evidence in this case, which, as pointed out in the statement of facts, consists of 138 pages, we can not say that the trial court abused its discretion. Code, §§ 50-121, 74-106, and 74-107; Handley v.Handley, 204 Ga. 57 (48 S.E.2d 827); Lamar v. Harris,117 Ga. 993 (44 S.E. 866); Willingham v. Willingham,192 Ga. 405 (15 S.E.2d 514); Attaway v. Attaway, 194 Ga. 448 (22 S.E.2d 50).
While it is true that the award of the custody of the children to the father for a part of the time permits them to be taken out of the State, the court in its judgment specifically provided as a condition precedent to the removal of the children from the State that the plaintiff give a good and sufficient bond in the sum of two thousand dollars, to be approved by the clerk of the court, conditioned upon his compliance with the order of the court for the return of the children to its jurisdiction at the times specified in the order, or at any other time when called upon by the court so to do, and we can not hold that this judgment constituted an abuse of discretion. State v. King, 1Ga. Dec. 93; Pruitt v. Butterfield, 189 Ga. 593 (6 S.E.2d 786); King v. King, 202 Ga. 838 (2) (44 S.E.2d 791).
2. In both the main and cross-bills of exceptions error is assigned because the trial court, after having heard evidence all day, consisting of oral testimony, documentary evidence and affidavits, made the following announcement and ruling: "The Court: It is getting late, and I have another engagement tomorrow and I can not continue this hearing at that time. I have heard enough evidence in this case to pass on it and so we will now conclude the hearing."
It is insisted by counsel for both the plaintiff and the defendant that they had other witnesses present whom they desired to introduce, and so informed the court. However, the assignments of error complaining of this ruling by the trial court, which was made at the hearing on October 21, 1948, were not presented to the trial court in the main bill of exceptions until December 16, 1948, and in the cross-bill of exceptions until January 24, 1949, and no exceptions pendente lite were presented at any time by *Page 116 counsel for either of the parties, complaining of such ruling. These exceptions come too late and present no question for consideration by this court. Code (Ann. Supp.), §§ 6-902, 6-905;Callan Court Co. v. Citizens Southern National Bank,184 Ga. 87 (1) (190 S.E. 831); Beavers v. Williams, 199 Ga. 113 (1) (33 S.E.2d 343); Southern Bell Telephone TelegraphCo. v. Georgia Pub. Serv. Comm., 203 Ga. 832 (1) (49 S.E.2d 38).
Judgment affirmed on both the main and cross-bills ofexceptions. All the Justices concur.