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QUILLIAN, Justice.
Custody of children. Coffee Superior Court. Before Judge Hodges.
In the record which we now review there was some conflict in the evidence in regard to whether the father failed to provide necessaries, and had abandoned the children, and whether the father had been guilty of such cruel treatment and reprehensible conduct as to relinquish his right to parental control. See Code 74-108.3, 74-108.6 and 74-110. See in this connection Dornburg v. McKellar, 204 Ga. 189 (48 SE2d 820); Turpin v. Brown, 170 Ga. 824 (154 SE 356); Moore v. Dozier, 128 Ga. 90 (2) (57 SBE 110). Where there is conflict in the evidence supporting the opposite parties' position on the controlling issues of a case the discretion of the trial judge will not be controlled or interfered with. Thompson v. Thompson, 214 Ga. 618 (106 SE2d 788). Butts v. Griffith, 189 Ga. 296 (5 SE2d 907); Shope v. Singlteton, 196 Ga. 506 (27 SE2d 26); McLain v. Smith, 207 Ga. 641 (63 SE2d 663); Stuckey v. Jones, 212 Ga. 495 (93 SE2d 719). Therefore, this court will not substitute its judgment for that of the trial judge absent abuse of legal discretion.
Here the evidence amply authorized, although it did not demand, the finding that the father was not a fit and proper person to have custody of the children and that it was for the best interests and welfare of the children that they be awarded to the plaintiffs. As was pointed out in Byers v. Loftis, 208 Ga. 398, 399 (67 SE2d 118): "The evidence was in sharp conflict. The trial judge resolved that conflict against the petitioners [the plaintiff in error here], and awarded custody of the child to the respondent [the defendants in error here]. We can not say, notwithstanding the evidence of the petitioners to the contrary, that the judge of the court below abused his discretion."
Willis Kirkland and his wife, Oveda Kirkland, brought suit in Coffee Superior Court naming Dan Adams as defendant and seeking custody and control of two minor children of the defendant. The original petition alleged that the plaintiffs had the two minor children in their custody for the past twelve months, the younger girl since the death of the children's mother about 20 months previously; that the defendant had abandoned them to the care of the plaintiffs; that they had provided all the necessaries of the children; that the defendant failed and refused to provide any type of adequate home life for the children.
By amendment it was further alleged: that the defendant had failed and refused to provide any means for the support of the children; that the defendant kept in his home women "with habits of prostitution" and indulged in lewd acts in the presence of the older child; that the defendant's acts of neglect and refusal to supply necessities, as well as the acts of indecency, were willfully and intentionally committed to harm the older child; that the defendant earned at least $70 per week as a truck driver. Besides seeking custody of the children, the plaintiffs prayed for the sum of $20 per week for maintenance and support of the minor children.
The case came on for trial without a jury. The plaintiffs introduced evidence that while the children were in the defendant's care they were left for days at a time and were often hungry, and as a consequence they went to the plaintiff's home for food, that they were beaten "bad" and cursed and that the defendant illicitly consorted with women and engaged in indecent behavior in the presence of the children. There was evidence that the defendant had beaten his deceased wife and threatened to kill her with a gun which he brandished; that he drank, sometimes to excess; that he had sent the baby to the plaintiffs for them to care for after she was eight weeks old and then sent the older girl in January, 1962.
There was testimony by a Department of Welfare worker that the defendant had applied for and received financial assistance for the children, but that the plaintiffs "provided all the actual food and medical care and clothing during the time that he was receiving $134 from the Welfare Department." The witness conceded that the information was obtained from an investigation based partially on what merchants told her. In response to the question "You don't know of your own knowledge where the money came from that bought the food and clothing?" she relied: "No, I don't know he gave them the money."
From Mrs. Kirkland's testimony it appears that the defendant gave the plaintiffs, at most, $30.00 during the time the children stayed with them. Concerning the circumstances of the plaintiffs' assuming the responsibility of caring for the children, Mrs. Kirkland testified that the defendant told her, "l didn't want to take care of the baby," and that "he said he would leave the baby there and that he would take it away before I got used to it." When query was made as to whether she had asked the defendant to sign any papers, Mrs. Kirkland stated that he did not sign any, but "he said if I got used to the children, he would not take them out of my home."
Several witnesses testified that the home of the plaintiffs was a fit and proper place to raise children, that the plaintiffs amply provided for them, carried the children to church regularly, and that the grades and school work of the older girl had markedly improved since she stayed with the plaintiffs. It was further brought out that the plaintiffs paid for all the children's food, clothing and medical needs.
The defendant denied that he had beaten the children unnecessarily, that he gave them to the plaintiffs, that he had engaged in indecent behavior in their presence or carried on an adulterous relation with two women who stayed at his house. He stated that during the time in question he earned between $75 and $125 per week as a truck driver, plus a percentage for each load; that he was now in a position to provide a home where the children would be fed, sheltered and educated. However, he made no statement denying that he failed to provide for the children while they were in his care. In regard to contributions for the children's support while they were living with the plaintiffs, he said, "Every time I could get around I would give them money," but couldn't say when or how many times, although he later testified in response to how much he had contributed "Anyway, from $10 to $15 a week."
His testimony was corroborated, in part, by that of his two sons.
At the conclusion of the evidence the trial judge entered a judgment giving permanent custody and control of the minor children to the plaintiffs, ordering that the defendant pay $10 per week for the support of each child and allowing the defendant certain visitation privileges. To this judgment the defendant excepted and assigns error. The defendant, the plaintiff in error here, contends that the evidence adduced at the trial was insufficient, as a matter of law, to overcome his prima facie right, as the father and surviving parent, to the custody of the minor children in question, and that there was no showing of loss of parental control as provided in Code Ann. 74-107 (Ga. L. 1957, pp. 412, 413) and Code 74-108, 74-109 and 74-110.
Arthur C. Farrar, contra.
Sumner & Boatright, for plaintiff in error.
Friday May 22 22:38 EDT

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