161 Ga. App. 411 | Ga. Ct. App. | 1982
This is an appeal by the plaintiff below of the following order and judgment of the trial court:
“This is a child custody case in which the Plaintiff-Father seeks to remove custody of his two children from the Defendant-Mother and have the children placed with himself. The case was vigorously contested on both sides with the evidentiary hearings covering portions of three consecutive days. Each party was represented by able counsel. From the evidence presented, the Court finds the following facts:
“PLAINTIFF and DEFENDANT were divorced in April 1977. The custody of their two children, Lee and Kim, born October 16, 1973 and November 6,1974, respectively, was awarded to the mother.
“The DEFENDANT married Tommy Whiggum in September, 1977 and was divorced from him in March, 1978. DEFENDANT remarried Mr. Whiggum in September, 1978 and divorced him a second time in April, 1980.
“DEFENDANT married Steve Fincher in January, 1981, and remains married to him, although they separated for two or three weeks in March because of a disagreement. During this separation*412 from Mr. Fincher, DEFENDANT and the children lived for a time in the home of DEFENDANT’S former husband, Mr. Whiggum. Mr. Fincher was seventeen years of age at the time of his marriage to the DEFENDANT and he has since attained the age of eighteen years.
“Since her divorce from the PLAINTIFF in 1977, DEFENDANT and the children have had fourteen different residences.
“DEFENDANT is presently unemployed and is presumably supported by her husband, a high-school dropout, who earns approximately $120.00 per week. DEFENDANT receives $150.00 per month child support from the PLAINTIFF. DEFENDANT’S work record is marginal, at best. She evidently is intelligent and capable, or at least is able to convey this impression to prospective employers, but she lacks persistence or self-discipline or a willingness to work, and has left all of her positions of employment since her divorce from the PLAINTIFF because of “personal” or “domestic” problems.
“In addition to her stormy marital history over the past four years, the DEFENDANT has endured a D and C; a complete hysterectomy; an appendectomy; a gall bladder operation; an operation for kidney stones; the death of her father; five automobile wrecks; the loss of her home to fire; and the burning of two automobiles. The details of these events were not presented at the trial, but that they occurred was not questioned.
“PLAINTIFF has remarried and he and his wife have a nine-month-old baby. PLAINTIFF is regularly employed and earns $11.30 per hour and expects a raise before the end of the summer. Mrs. Howard is not employed outside of the home and would expect to remain in the home to care for the children should MR. HOWARD succeed in gaining custody.
“At one point following their divorce, PLAINTIFF was shot by the DEFENDANT under disputed circumstances when he came to DEFENDANT’S residence late at night under the influence of alcohol.
“This Court did not choose to interview the children, who appear clean, healthy and happy. Lee has just completed the first grade and Kim has just finished kindergarten and will enter first grade next September. Although they live in Dodge County, both children are enrolled in the Pulaski County School System. Lee’s grades were good this past year, but deteriorated during the second half of the school year after he was placed in the Dodge County School System for six weeks. Lee was absent from school for fourteen out of the last thirty school days without excuse.
“Based on the testimony of a school and educational psychologist, Dr. Myra Burch, who interviewed the children, tested*413 them, and examined their standardized test results, the Court finds as a matter of fact that, despite the rather uncommon domestic and personal experiences of the DEFENDANT over the past four years, the emotional development of these children has been essentially normal and that they are well adjusted and have a good relationship with their parents. Dr. Burch testified that she found no evidence of emotional insecurity in the children; that the children, have a nurturent, positive relationship with their mother; and that the DEFENDANT appears to be doing a good job of mothering, if not wifing.
“This Court concedes that there have been many significant changes in circumstances and conditions in the lives of these children since their parents were divorced, and that common sense would indicate that in the vast majority of cases changes such as those here could have resulted in severe harm to the children. However, in this most unusual case, while the record is replete with evidence of change, there is no evidence which convinces this Court that the children have been harmed or that they are likely to suffer harm from the changes in conditions shown by the evidence. The rule is that change of conditions affecting the welfare of a child occurring after the rendition of a former final custody judgment which will warrant the issuance of a new judgment affecting a change in custody is essentially a fact issue in each individual case to be decided by the trial court. Robinson v. Ashmore, 232 Ga. 498 [207 SE2d 484]. It is the considered judgment of this Court, after hearing all of the evidence and observing the witnesses, that these children have not been harmed by their mother’s lively lifestyle, and that the interests of their health, happiness and general welfare will best be served by leaving them with her.
“It is therefore ordered that the prayers of the PLAINTIFF should be, and they are hereby, denied.” (Emphasis supplied.)
The appellant concedes that if there is any reasonable evidence to support the trial court’s award, the judgment below will not be disturbed. Robinson v. Ashmore, 232 Ga. 498, supra, but contends the trial court abused its discretion. Short of saying the trial court abused its discretion in its judgment, however, we find rather that the court’s judgment is based on the erroneous conclusion that there is “no evidence” of harm or likelihood of harm to the children.
The trial court apparently based its judgment on the testimony of the school (not clinical) psychologist that she found no evidence of emotional insecurity in the children, “that the children have a nurturent, positive relationship with their mother, and that [the mother] appears to be doing a good job of mothering... .” The record shows that this school psychologist reached her con
In “this most unusual case [where] the record is replete with evidence of change,” where the domestic and personal instability of
Judgment reversed with direction.