Dixon v. Dixon

360 S.E.2d 8, 183 Ga. App. 756, 1987 Ga. App. LEXIS 2078

• Court: Court of Appeals of Georgia
• Decided: June 16, 1987
• Docket: 74153
• Status: Published

Opinions

McMurray, Presiding Judge.

This is a child custody case. The father and mother were divorced on April 17, 1981, and custody of the child, an infant at the time of the divorce, was awarded to the mother by agreement. A few years later, the father sought a change of custody. A hearing was held in the Juvenile Court of Bibb County on May 6, 7 and 8, 1985, and at the conclusion of the hearing, the juvenile court took the case under advisement. Ten months later, on March 12, 1986, the juvenile court entered an order changing custody to the father. In its order, the juvenile court found “that the home and the care of the child would be suitable except for the fact that the mother is cohabiting with a man to whom she is not married while the child is living with her.” Based on this finding, the juvenile court concluded that the welfare of the child had been affected by a material change of condition and that it was in the child’s best interest to change custody to the father. We granted the mother’s application for a discretionary appeal. Held:

“The mind is incapable of complete recall after a long lapse of time. On a close case there is less likelihood of error if they are decided by judges who try them while the case is fresh in his mind. Juries are required to do this. It would be a substantial contribution to our system if judges would follow, as closely as possible, that system. Long delays in disposing of litigation in civil and criminal cases are an ever increasing cause of concern, not only to the judiciary, but to the public. One of the oldest of judicial adages is ‘justice delayed is often justice denied.’ ” McLain v. McClain, 305 S2d 884, 885 (Fla. App. 1975). This adage is most apt in cases of this kind. When the welfare of a child is at stake, an order regarding custody of the child should be rendered with deliberate speed.

The mother contends we should vacate the judgment of the juvenile court simply because of the ten-month delay in the rendition of the judgment. We can find no authority to support this contention. We have undertaken a thorough review of the record, however, because the delay in the rendering of the judgment gave us cause for concern. See McLain v. McClain, 305 S2d 884, 885, supra.

We find the evidence of cohabitation to be scanty. Moreover, it was sharply conflicting. The mother denied that she cohabited with a man to whom she was not married. The man testified that he lived elsewhere. Some neighbors were of the opinion that the man did not live with the mother. Other neighbors, however, opined that he did. As one neighbor explained, “He was just always there. . . This evidence, with all reasonable deductions and inferences therefrom, was sufficient to authorize a change of custody in the present case. We cannot say the juvenile court abused its wide discretion by changing custody to the father. Gibson v. Pierce, 176 Ga. App. 287 (335 SE2d 658); Bell v. Bell, 154 Ga. App. 290 (2) (267 SE2d 894).

Relying upon OCGA § 19-9-23 (c) (2), the mother asserts that the father impermissibly sought a change of custody in response to a complaint for modification in which the mother sought an increase in child support payments. This assertion is without merit. Simply put, a complaint for modification of support is not an “action or motion seeking to enforce a child custody order.” OCGA § 19-9-23 (c) (2).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Carley, Sognier, Pope and Benham, JJ., concur. Deen, P. J., also concurs specially. Beasley, J., dissents.