Avery v. Avery

Supreme Court of Georgia

Avery v. Avery

218 S.E.2d 19, 234 Ga. 729, 1975 Ga. LEXIS 1240

CourtSupreme Court of Georgia

DecidedJuly 2, 1975

Docket29956

StatusPublished

Cited by2 cases

This text of 218 S.E.2d 19 (Avery v. Avery) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avery v. Avery, 218 S.E.2d 19, 234 Ga. 729, 1975 Ga. LEXIS 1240 (Ga. 1975).

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Opinion

Hill, Justice.

This is an appeal from an order denying and dismissing an action for a change of custody brought by the mother of a minor child. The action was heard by the court without a jury and was opposed by the father. The case was dismissed January 10, 1975, for failure to present sufficient evidence to authorize the granting of the relief prayed for.

The mother enumerates error upon the grounds that the court erred in denying and dismissing her complaint and abused its discretion in failing to award her custody of the minor child, and upon the failure of the trial court to make findings of fact and conclusions of law in its final order. Code Ann. § 81A-152 (a) provides that in all actions in superior court tried upon the facts without a jury, except uncontested divorce, alimony and custody of minors, the court shall find the facts specially and state separately its conclusions of law thereon. The court recently has held that Code Ann. § 81A-152 (a) is mandatory. Doyal Development Co. v. Blair, 234 Ga. 261 (215 SE2d 471). It is applicable to contested child custody cases. Githens v. Githens, 234 Ga. 715.

The trial court is directed to enter the findings of fact and conclusions of law on which its decision is based.

Judgment reversed with direction.

All the Justices concur, except Nichols, C. J., and Undercofler, P. J., who dissent. Baker, Baker & Marshall, Elizabeth M. Baker, for appellant. Donald A. Page, for appellee.

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Hill, Justice.

This is an appeal from an order denying and dismissing an action for a change of custody brought by the mother of a minor child. The action was heard by the court without a jury and was opposed by the father. The case was dismissed January 10, 1975, for failure to present sufficient evidence to authorize the granting of the relief prayed for.

The mother enumerates error upon the grounds that the court erred in denying and dismissing her complaint and abused its discretion in failing to award her custody of the minor child, and upon the failure of the trial court to make findings of fact and conclusions of law in its final order. Code Ann. § 81A-152 (a) provides that in all actions in superior court tried upon the facts without a jury, except uncontested divorce, alimony and custody of minors, the court shall find the facts specially and state separately its conclusions of law thereon. The court recently has held that Code Ann. § 81A-152 (a) is mandatory. Doyal Development Co. v. Blair, 234 Ga. 261 (215 SE2d 471). It is applicable to contested child custody cases. Githens v. Githens, 234 Ga. 715.

The trial court is directed to enter the findings of fact and conclusions of law on which its decision is based.

Judgment reversed with direction.

All the Justices concur, except Nichols, C. J., and Undercofler, P. J., who dissent. Baker, Baker & Marshall, Elizabeth M. Baker, for appellant. Donald A. Page, for appellee.

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218 S.E.2d 19, 234 Ga. 729, 1975 Ga. LEXIS 1240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-v-avery-ga-1975.

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