Stegall v. Stegall

Supreme Court of Georgia

Stegall v. Stegall

232 S.E.2d 909, 238 Ga. 296, 1977 Ga. LEXIS 1005

CourtSupreme Court of Georgia

DecidedJanuary 27, 1977

Docket31716

StatusPublished

Cited by2 cases

This text of 232 S.E.2d 909 (Stegall v. Stegall) 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

Stegall v. Stegall, 232 S.E.2d 909, 238 Ga. 296, 1977 Ga. LEXIS 1005 (Ga. 1977).

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Opinions

Undercofler, Presiding Justice.

The father of three minor children, who have been placed with three separate families, the defendants, since January, 1973, sought to regain their custody. The trial court denied his petition and he appeals.

When the father and the mother, who has not appeared in this action, were divorced in 1974, the trial court gave temporary custody of the children to the three defendants with whom the children had been living and "by express agreement of each of the parties and their counsel reserved until further order of the Court,” the final determination of custody. We have held many times that any such attempt to reserve custody is invalid, and is in effect a final custody order. Goodloe v. Goodloe, 211 Ga. 894 (89 SE2d 654) (1955). See e. g., Simpson v. Moon, 238 Ga. 152 (1977); Bragg v. Bragg, 224 Ga. 773 (164 SE2d 560) (1968); Broome v. Broome, 212 Ga. 132 (91 SE2d 18) (1956); Fuller v. Fuller, 197 Ga. 719 (30 SE2d 600) (1944).

Although we agree with the father that the trial court incorrectly attempted to exercise the custody jurisdiction reserved in the divorce decree, the court also found that there was no change of condition materially affecting the children. "The standard to be followed is whether there are changed conditions affecting the best interests of the child occurring after the rendition of a former final custody judgment which will warrant the issuance of a new judgment by a habeas corpus court changing custody or visitation rights, and is essentially a fact question in each individual case which must be decided by the habeas corpus court. And if there is [297]*297reasonable evidence in the record to support the decision made by the habeas corpus court in changing or in refusing to change custody or visitation rights, then the decision of that court must prevail as a final judgment, and it will be affirmed on appeal.” Crumbley v. Stewart, 238 Ga. 169 (1977). Accord, Robinson v. Ashmore, 232 Ga. 498 (207 SE2d 484) (1974). The trial court’s judgment denying the father’s petition must be affirmed.

Argued November 23, 1976 — Decided January 27, 1977 Rehearing denied February 8, 1977. Howe & Sutton, Richard C. Sutton, for appellant. Gammon & Anderson, Wayne W. Gammon, York & Cummings, Michael D. McRae, F. Marion Cummings, for appellees.

Judgment affirmed.

All the Justices concur, except Jordan, J., who concurs in the judgment only, and Nichols, C. J., Gunter and Ingram, JJ., who dissent.

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Undercofler, Presiding Justice.

The father of three minor children, who have been placed with three separate families, the defendants, since January, 1973, sought to regain their custody. The trial court denied his petition and he appeals.

When the father and the mother, who has not appeared in this action, were divorced in 1974, the trial court gave temporary custody of the children to the three defendants with whom the children had been living and "by express agreement of each of the parties and their counsel reserved until further order of the Court,” the final determination of custody. We have held many times that any such attempt to reserve custody is invalid, and is in effect a final custody order. Goodloe v. Goodloe, 211 Ga. 894 (89 SE2d 654) (1955). See e. g., Simpson v. Moon, 238 Ga. 152 (1977); Bragg v. Bragg, 224 Ga. 773 (164 SE2d 560) (1968); Broome v. Broome, 212 Ga. 132 (91 SE2d 18) (1956); Fuller v. Fuller, 197 Ga. 719 (30 SE2d 600) (1944).

Although we agree with the father that the trial court incorrectly attempted to exercise the custody jurisdiction reserved in the divorce decree, the court also found that there was no change of condition materially affecting the children. "The standard to be followed is whether there are changed conditions affecting the best interests of the child occurring after the rendition of a former final custody judgment which will warrant the issuance of a new judgment by a habeas corpus court changing custody or visitation rights, and is essentially a fact question in each individual case which must be decided by the habeas corpus court. And if there is [297]*297reasonable evidence in the record to support the decision made by the habeas corpus court in changing or in refusing to change custody or visitation rights, then the decision of that court must prevail as a final judgment, and it will be affirmed on appeal.” Crumbley v. Stewart, 238 Ga. 169 (1977). Accord, Robinson v. Ashmore, 232 Ga. 498 (207 SE2d 484) (1974). The trial court’s judgment denying the father’s petition must be affirmed.

Argued November 23, 1976 — Decided January 27, 1977 Rehearing denied February 8, 1977. Howe & Sutton, Richard C. Sutton, for appellant. Gammon & Anderson, Wayne W. Gammon, York & Cummings, Michael D. McRae, F. Marion Cummings, for appellees.

Judgment affirmed.

All the Justices concur, except Jordan, J., who concurs in the judgment only, and Nichols, C. J., Gunter and Ingram, JJ., who dissent.

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232 S.E.2d 909, 238 Ga. 296, 1977 Ga. LEXIS 1005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stegall-v-stegall-ga-1977.

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