Beasley, Judge.
The father of two children appeals, after obtaining permission under OCGA § 5-6-35 (a) (2), from a judgment entered in favor of the mother in a change-of-custody action she initiated.
When the parties were divorced in August 1988, the father obtained custody pursuant to the separation agreement which was incorporated into the decree. Although the agreement specified “joint custody,” its actual effect was for the father to have custody and for the mother to have visitation privileges.
The children, then ages four and five, and the father were living in the marital home, but they soon moved to an apartment adjacent to his parents’ home. It appears that the father is dependent on social security disability benefits due to a neurological condition which prevents him from working, but that his parents provided the apartment and other assistance sufficient to enable the father to meet the chil[716]*716dren’s needs.
The mother remarried in September 1989 and filed the present change of custody action the following March. The father responded with a counterclaim for child support. At the evidentiary hearing in August, the mother testified that the father had engaged in certain violent and emotionally unstable conduct towards her since their divorce. In particular, she recounted that in March 1989, she called police to complain that he was sitting in a car in the parking lot of her apartment, spying on her, and that during that same month he had taken out a warrant against her on a groundless theft charge which he had later dropped. She further stated that in July 1989, after she returned the children to his home following her weekend visitation, he had attacked, choked, and thrown her to the ground, evidently due to anger over her having permitted one of the children to accompany her male friend to the grocery store.
She also testified that the father had induced her to sign the separation agreement by falsely promising to remain with the children in the marital residence, that he had failed to keep her apprised of school and religious functions, that he had hung up the phone on her when she was talking to the children and refused to allow them to telephone her for two days thereafter, and that he had refused to grant her two of the four weeks of summer visitation to which she was entitled during the current summer.
The trial court concluded from the evidence that both parties were fit to have custody but that there had been material changes in circumstances since the entry of the divorce decree affecting the welfare and best interest of the children and warranting a change of custody to the mother.
In 11 enumerations of error the appellant attacks the findings, the legal basis, and the conclusions reached by the court.
The legal principles governing the trial judge’s awesome role in such cases are as follows. “Once a permanent child custody award has been entered, the test for use by the trial court in change of child custody suits is whether there has been a ‘change of conditions affecting the welfare of the child.’ (Cits.)” Gazaway v. Brackett, 241 Ga. 127 (244 SE2d 238) (1978). “[A] showing of changed conditions of an out-of-custody parent, without a showing of its material effect on the child, is insufficient to warrant a change in custody.” Robinson v. Ashmore, 232 Ga. 498, 502 (207 SE2d 484) (1974). “Though the trial judge is given a discretion, he is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child. (Cit.)” Young v. Young, 216 Ga. 521, 522 (118 SE2d 82) (1961).
“OCGA § 19-9-3 (a) provides that in change of custody cases the trial court’s duty ‘shall be to exercise its discretion to look to and [717]*717determine what is for the best interest of child or children and what will best promote their welfare and happiness and to make its award accordingly.’ ” Lifsey v. Lifsey, 256 Ga. 613 (351 SE2d 637) (1987). This rule of law lays the Solomonic task squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. It is that judge upon whom it is “incumbent ... to hear evidence with respect to changed conditions and render a decision based upon [that judge’s] discretion and good judgment as [that judge] viewed the evidence, giving primary consideration to the welfare of the child.” Robinson v. Ashmore, supra at 502 (IV). “In cases of this nature where the evidence is heard before the judge alone and without the intervention of a jury, and where the principal consideration is the welfare of the child involved, the proceeding is not to be governed by strict rules applicable to ordinary trials. [Cits.] Unless the record before this court clearly indicates that the judge based his [or her] decision upon illegal evidence or upon a misapprehension of the law, it will be presumed that upon rendering his [or her] decision he [or she] considered only legal and admissible evidence.” Tyree v. Jackson, 226 Ga. 690, 696 (3) (177 SE2d 160) (1970).
So it is that the remote reviewing court recognizes not only the physical limitations put upon it by distance in time and space, but it also recognizes that by law it has no judgment to impose in the matter. The exercise of discretion is granted solely and exclusively to the trial judge, and “ ‘[i]f there is any reasonable evidence to support the trial court’s decision concerning change of custody as between parents, such decision will be affirmed on appeal.’ (Cit.)” Lifsey, supra at 614; Gazaway v. Brackett, 241 Ga. 127, 128, supra.
The argument is that the trial court erred because there is no evidence that the changes in conditions adversely affected the children.
First of all, it is clear that the trial court did not misapprehend the law in this regard. See Tyree, supra. In the order, the trial court expressly concluded that “there has been a material change in circumstance with the [father] which adversely affects the welfare and best interests of the children,” and that “there have been material changes in circumstance to the [mother] which favorably impact the welfare and best interests of the children and support her being the custodian of the children.” So the trial court had the best interests of the two young girls centrally in mind, as he should, and followed the Supreme Court’s express emphasis “that any consideration of custody must always be made in the light of the best interests of the child involved.” Robinson, supra at 501.
The evidence in the case, some of which is narrated above is sufficient to authorize a change of custody. The court found that the fa[718]*718ther refused summertime visitation to the mother and refused visitation over the phone. “[T]he repeated denial of the non-custodial parent’s visitation rights” authorizes a change. Bull v. Bull, 243 Ga. 72 (2) (252 SE2d 494) (1979).
Moreover, the trial court found, and the evidence showed, a pattern of violations of the divorce decree. “This alone would authorize a modification of such decree. (Cits.)” Tyree, supra at 696.
Free access — add to your briefcase to read the full text and ask questions with AI
Beasley, Judge.
The father of two children appeals, after obtaining permission under OCGA § 5-6-35 (a) (2), from a judgment entered in favor of the mother in a change-of-custody action she initiated.
When the parties were divorced in August 1988, the father obtained custody pursuant to the separation agreement which was incorporated into the decree. Although the agreement specified “joint custody,” its actual effect was for the father to have custody and for the mother to have visitation privileges.
The children, then ages four and five, and the father were living in the marital home, but they soon moved to an apartment adjacent to his parents’ home. It appears that the father is dependent on social security disability benefits due to a neurological condition which prevents him from working, but that his parents provided the apartment and other assistance sufficient to enable the father to meet the chil[716]*716dren’s needs.
The mother remarried in September 1989 and filed the present change of custody action the following March. The father responded with a counterclaim for child support. At the evidentiary hearing in August, the mother testified that the father had engaged in certain violent and emotionally unstable conduct towards her since their divorce. In particular, she recounted that in March 1989, she called police to complain that he was sitting in a car in the parking lot of her apartment, spying on her, and that during that same month he had taken out a warrant against her on a groundless theft charge which he had later dropped. She further stated that in July 1989, after she returned the children to his home following her weekend visitation, he had attacked, choked, and thrown her to the ground, evidently due to anger over her having permitted one of the children to accompany her male friend to the grocery store.
She also testified that the father had induced her to sign the separation agreement by falsely promising to remain with the children in the marital residence, that he had failed to keep her apprised of school and religious functions, that he had hung up the phone on her when she was talking to the children and refused to allow them to telephone her for two days thereafter, and that he had refused to grant her two of the four weeks of summer visitation to which she was entitled during the current summer.
The trial court concluded from the evidence that both parties were fit to have custody but that there had been material changes in circumstances since the entry of the divorce decree affecting the welfare and best interest of the children and warranting a change of custody to the mother.
In 11 enumerations of error the appellant attacks the findings, the legal basis, and the conclusions reached by the court.
The legal principles governing the trial judge’s awesome role in such cases are as follows. “Once a permanent child custody award has been entered, the test for use by the trial court in change of child custody suits is whether there has been a ‘change of conditions affecting the welfare of the child.’ (Cits.)” Gazaway v. Brackett, 241 Ga. 127 (244 SE2d 238) (1978). “[A] showing of changed conditions of an out-of-custody parent, without a showing of its material effect on the child, is insufficient to warrant a change in custody.” Robinson v. Ashmore, 232 Ga. 498, 502 (207 SE2d 484) (1974). “Though the trial judge is given a discretion, he is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child. (Cit.)” Young v. Young, 216 Ga. 521, 522 (118 SE2d 82) (1961).
“OCGA § 19-9-3 (a) provides that in change of custody cases the trial court’s duty ‘shall be to exercise its discretion to look to and [717]*717determine what is for the best interest of child or children and what will best promote their welfare and happiness and to make its award accordingly.’ ” Lifsey v. Lifsey, 256 Ga. 613 (351 SE2d 637) (1987). This rule of law lays the Solomonic task squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. It is that judge upon whom it is “incumbent ... to hear evidence with respect to changed conditions and render a decision based upon [that judge’s] discretion and good judgment as [that judge] viewed the evidence, giving primary consideration to the welfare of the child.” Robinson v. Ashmore, supra at 502 (IV). “In cases of this nature where the evidence is heard before the judge alone and without the intervention of a jury, and where the principal consideration is the welfare of the child involved, the proceeding is not to be governed by strict rules applicable to ordinary trials. [Cits.] Unless the record before this court clearly indicates that the judge based his [or her] decision upon illegal evidence or upon a misapprehension of the law, it will be presumed that upon rendering his [or her] decision he [or she] considered only legal and admissible evidence.” Tyree v. Jackson, 226 Ga. 690, 696 (3) (177 SE2d 160) (1970).
So it is that the remote reviewing court recognizes not only the physical limitations put upon it by distance in time and space, but it also recognizes that by law it has no judgment to impose in the matter. The exercise of discretion is granted solely and exclusively to the trial judge, and “ ‘[i]f there is any reasonable evidence to support the trial court’s decision concerning change of custody as between parents, such decision will be affirmed on appeal.’ (Cit.)” Lifsey, supra at 614; Gazaway v. Brackett, 241 Ga. 127, 128, supra.
The argument is that the trial court erred because there is no evidence that the changes in conditions adversely affected the children.
First of all, it is clear that the trial court did not misapprehend the law in this regard. See Tyree, supra. In the order, the trial court expressly concluded that “there has been a material change in circumstance with the [father] which adversely affects the welfare and best interests of the children,” and that “there have been material changes in circumstance to the [mother] which favorably impact the welfare and best interests of the children and support her being the custodian of the children.” So the trial court had the best interests of the two young girls centrally in mind, as he should, and followed the Supreme Court’s express emphasis “that any consideration of custody must always be made in the light of the best interests of the child involved.” Robinson, supra at 501.
The evidence in the case, some of which is narrated above is sufficient to authorize a change of custody. The court found that the fa[718]*718ther refused summertime visitation to the mother and refused visitation over the phone. “[T]he repeated denial of the non-custodial parent’s visitation rights” authorizes a change. Bull v. Bull, 243 Ga. 72 (2) (252 SE2d 494) (1979).
Moreover, the trial court found, and the evidence showed, a pattern of violations of the divorce decree. “This alone would authorize a modification of such decree. (Cits.)” Tyree, supra at 696. Although in that case the violations were of terms involving visitation, in this case the court expressly found that this pattern of violations “constitutes a material change in circumstances adversely affecting the best interests and welfare of the children.” The evidence supported the findings of fact of “willful violations . . . including, but not limited to, refusing to consult with wife as the divorce decree required; refusing to allow the children to communicate with wife over the phone; refusing wife her summertime visitation; and by physically and mentally harming wife as evidenced by . . . testimony . . . police reports and the hospital reports. . . .” As emphasized in Robinson, supra at 502, “ ‘A change of circumstances that would render a prior judgment inconclusive is not necessarily limited to a change in the moral or financial condition of the parent to whom the initial award was made, but includes any new and material change in the circumstances of either parent or of the children which might substantially affect the health, happiness, or welfare of the children.’ (Emphasis supplied.),” quoting from Handley v. Handley, 204 Ga. 57, 59 (48 SE2d 827) (1948). The court also found that the change in residence, from the marital residence which had been agreed upon “for stability purposes for the minor children” and which was changed to a small apartment despite the husband’s promise, was a material change for the two little girls.
Based on the evidence, the trial judge could draw the reasonable inference that the types of behavior exhibited by the father towards the mother, which in large measure were contemptuous of court authority, and his negative attitude and overt antipathy towards the girls’ relationship with her, demonstrated by his repeated insulation of them from contact with her, adversely affected their natural relationship with their mother because of his influence on them. This could be deemed harmful to the young daughters, aged five and seven at the time of the order appealed from. He could also draw the reasonable inference that the father’s repeated interference with the mother’s participation in child-rearing, disserved their welfare. These support the conclusion that it was not in the little girls’ best interest to remain in this environment.
Such a conclusion is strengthened by consideration of all the surrounding changed circumstances on both sides, adverse in the father’s financial and physical circumstances and improved in the mother’s. The father was unable to care for the girls without substantial finan[719]*719cial and care-giving assistance from his parents whereas the court found that the mother had remarried, achieved financial stability and purchased a new home with adequate living space for the girls. As the Supreme Court pointed out in Handley, supra at 59: “ ‘The capacity, ability, or fitness of the party to whom the child was awarded in the previous proceeding may thereafter become entirely different. The status of both such parties and the child may have changed. Change of circumstances may render a change necessary in order to promote the health, happiness or welfare of the child.’ [Cits.]”
This case is in the same legal posture as was the case of Branton v. Stone, 169 Ga. App. 737 (315 SE2d 24) (1984), and the same principles, which are set out above, apply. The conclusion is inescapable that the judgment must be affirmed because, as in Branton, “[n]o abuse of discretion has been shown. . . .” Id. at 738.
Judgment affirmed.
Birdsong, P. J., Parley, Cooper and Andrews, JJ., concur. Sognier, C. J., McMurray, P. J., Banke, P. J., and Pope, J., dissent.