Githens v. Githens

Jul 1, 1975
30029
Reporters:
, ,
Before:
Nichols
Per curiam.

This action was brought by the mother of two children to obtain their custody from their father. The father contends that he is entitled to retain custody of the children because of a change in conditions affecting their welfare since the rendition of the divorce. After a hearing the trial court awarded custody of the children to their father. The mother appeals to this court. Held:

1. The mother contends that she was entitled to a judgment on the pleadings since she was awarded custody of the children by the divorce decree. There is no merit in this contention since the father’s pleadings showed a change of circumstances had occurred since the divorce decree was entered.

2. The mother contends that the court erred in rendering a final judgment without making findings of fact. Code Ann. § 81A-152 (a) provides: “In all actions in superior court tried upon the facts without jury, except actions involving only uncontested divorce, alimony and custody of minors, the court shall find the facts specially and state separately its conclusions of law thereon...” Ga. L. 1969, pp. 645,646; 1970, pp. 170,171. This Code section requires findings of facts and conclusions of law in contested divorce, contested alimony and contested custody of children actions. The section is mandatory. Therefore, the trial court is directed to enter the findings of fact and conclusions of law on which its decision is based. Doyal Development Co. v. Blair, 234 Ga. 261.

Argued June 11, 1975 Decided July 1, 1975. Carman Lavender, for appellant. Jack T. Elrod, for appellee.

Judgment reversed with direction.

All the Justices concur, except Nichols, C. J., and Undercofler, P. J., who dissent.