Dearman v. Rhoden

219 S.E.2d 704, 235 Ga. 457, 1975 Ga. LEXIS 902

• Court: Supreme Court of Georgia
• Decided: October 16, 1975
• Docket: 30238
• Status: Published

Opinions

Per curiam.

This is the second appeal in a habeas corpus child custody case. On the first appeal the case was remanded to the trial judge with direction that he "exercise his discretion in ruling whether or not there are changed conditions affecting the welfare of the child occurring after the rendition of . . . [a] former final custody judgment” in favor of the mother. See 234 Ga. 229 (214 SE2d 919) (1975). Upon remand, the trial judge found there had been a material change and granted custody to the father.

1. The mother’s appeal contests the subject matter jurisdiction of the trial court and also enumerates other alleged errors in the trial court. Appellant’s first contention that the trial court lacked subject matter jurisdiction in this case is without merit. Padgett v. Penland, 230 Ga. 824 (199 SE2d 210) (1973) controls this issue adversely to appellant here.

2. The second series of enumerations of error deals with whether certain opinion and other evidence should have been admitted in the trial before the judge, without a jury. On examining the disputed portions of testimony it' is apparent that the court did not proceed under any erroneous legal theory in this case. The judge heard this case without a jury and "[ujnless the record before this court clearly indicates that the judge based his decision upon illegal evidence or upon a misapprehension of the law, it will be presumed that upon rendering his decision he considered only legal and admissible evidence.” Tyree v. Jackson, 226 Ga. 690, 696 (177 SE2d 160) (1970). The enumerations of error concerning the admission or exclusion of evidence are without merit.

3. The next enumerations of error deal with whether or not the trial judge applied the proper standard in changing custody and whether the evidence demanded his findings. The appellant-mother was awarded custody of the minor children by a Florida divorce decree. That award is prima facie evidence of her legal right to custody and is entitled to full faith and credit in Georgia. See Tyree v. Jackson, supra. However, contrary to appellant’s contentions, in order to change that award of custody the trial court does not necessarily have to find that the legal custodian has forfeited her parental rights under Code Ann. §§ 74-108,74-109 and74-110. In order to change custody from one parent to the other, "There must be a showing that the party to whom custody was originally awarded is no longer able or suited to retain custody or that the conditions and circumstances surrounding the child have so changed that the welfare of the child would be enhanced by modifying the original judgment.” (Emphasis supplied.) Bowen v. Bowen, 223 Ga. 800 (158 SE2d 233) (1967).

4. The trial judge, after extensive findings of fact, concluded that there were material changes in circumstances affecting the welfare of the children so as to justify a redetermination of their custody. "Whether there are changed conditions affecting the welfare of the child occurring after the rendition of a former final custody judgment which will warrant. . . changing custody ... is essentially a fact question in each individual case ... And if there is reasonable evidence in the record to support the decision made by the habeas corpus court in changing or refusing to change custody or visitation rights, then the decision of that court must prevail. ..” Long v. Long, 233 Ga. 248 (210 SE2d 769) (1974). See also Robinson v. Ashmore, 232 Ga. 498 (207 SE2d 484) (1974). From the evidence in the transcript, we do not find that the trial court abused its discretion in changing custody of the children.

Argued September 4, 1975 Decided October 16, 1975 Rehearing denied October 28, 1975. Grady C. Pittard, Jr., for appellant. Fortson, Bentley & Griffin, Edwin Fortson, for appellee.

5. The appellant also enumerates as error the requirement in the trial court’s order that appellant post a $5,000 bond prior to the exercise of her summer visitation rights under which she may take the children to her residence in Mississippi. The appellant improperly denominates this bond as a ne exeat bond. The bond does not prevent appellant from leaving the state, but merely assures that appellant will comply with the terms of the court’s order and return the children to Georgia at the expiration of the visitation period. See Durham v. Spence, 228 Ga. 525, 532 (186 SE2d 723) (1972), and Good v. Good, 205 Ga. 112 (52 SE2d 610) (1949). This enumeration of error is without merit.

Judgment affirmed.

All the Justices concur, except Gunter, Ingram and Hill, JJ., who dissent from Division 1 and from the judgment.