Thе instant child custody case presents a confusing set of facts and a complicated procedural history. On February 10, 1975, the parties in the instant appeal were divorced pursuant to a decree of thе Superior Court of Clayton County. Appellee-mother was granted permanent custody of their minor child and appellant-father was granted specified visitation rights to the child. The record is not totally clear аs to exactly what transpired subsequently. Apparently criminal charges were brought against appellant for the alleged sexual molestation of the child during the times she was visiting with him. Around the same time that the criminal chargеs were brought and based upon the same allegations of sexual molestation of the child appellee sought a modification of the divorce decree to terminate appellant’s visitation rights. A hearing on the modification of appellant’s visitation rights was continued pending resolution of the criminal charges against him. Appellant was tried and acquitted in Clayton County of the molestation charge. Apparently а short time thereafter appellee and the child left the Clayton County area and could not be found. Evidently sometime either before or after the resolution of the criminal charges appellant had made his own motion to modify and extend his visitation rights to the child. On August 18, 1977, apparently after appellant had been acquitted of the criminal charges and appellee and the child had fled, the Superior Court of Claytоn County entered an order modifying the divorce decree so as to grant appellant extended visitation rights.
In April of 1980, a short time after appellant discovered that appellee and the child were living in Clаrke County, he filed a petition for change of custody in the superior court of that county, alleging a “change in circumstances materially affecting the welfare of the minor child ...” Appellee answered, dеnying appellant’s allegations and contesting his attempt to obtain custody of the child. A hearing was held on May 23, 1980 in Clarke Superior Court. After hearing evidence, the court took the case under advisement pending rеceipt of an investigatory report by the Department of Family and Children Services. On July 1, 1980, unbeknownst to the Superior Court of Clarke County and before that court had entered an order in the custody case, appеllant filed an application in the Superior Court of Clayton County seeking to hold appellee in contempt of that court’s August 18, 1977 order which had granted appellant extended visitation rights to the child. On July 31, 1980, again while Clarke Superior Court had the custody case under advisement, the Superior Court of Clayton County found appellee in contempt of that court’s *625 previous 1977 visitation order. The order of the Clayton Superior Court finding аppellee in contempt also made modifications in appellant’s visitation rights. Thereafter, on August 25, 1980, the Superior Court of Clarke County entered its order in the instant case. That order refused to grant appellant custody of the child and, based upon a finding that appellant had sexually molested the child, further modified appellant’s visitation rights in such a manner as to be in conflict with the Clayton County Superior Court’s order entered some weeks previously on July 31, 1980.
Appellant petitioned this court for a discretionary appeal from that portion of the Clarke County order modifying his visitation rights. Appellant’s petition was granted in order that we might determine the validity of the modification of appellant’s visitation rights ordered by the Superior Court of Clarke County in view of the previous rulings in 1977 and July 1980 of the Superior Court of Clayton County with regard to those same rights.
1. The first issue to be dеtermined is which superior court, that of Clarke County in the custody case or that of Clayton County in the subsequently filed contempt proceeding, had jurisdiction to modify appellant’s visitation rights. Clearly, Clarke County, the domicilе of appellee and the child, was the proper forum for the consideration of appellant’s proceeding to change custody.
Smith v. Smith,
However, in the instant case, the Superior Court of Clayton County did not have jurisdiction to enter the order on July 31,1980 modifying appellant’s visitation rights. The petition for modification was filed in Clarke County in April 1980. The contempt action was filed in Clayton County in July of 1980. We find that the Superior Court of Clarke County, the court whose jurisdiction over issues involving custody to the child was first invoked, had full authority to determine all such issues, including visitation rights. See
Breeden v. Breeden,
2. In related enumerations of error, appellant essentially urges that the trial court was not authorized to modify his visitation rights-because a modification of those rights was not sought by himself or appellee and that he was denied the opportunity to present evidence showing that the modification was not warranted. Apparently by this argument аppellant contends that he was not afforded an opportunity to present evidence that the circumstances had not changed since the prior award of visitation by the Clayton County Superior Court in 1977.
We find this аrgument meritless. It is clear that a court with jurisdiction over issues of child custody may, in the context of such a proceeding, modify visitation rights on its own. “Code Ann. §§ 30-127 (b) and 74-107 (b) do provide, in pertinent part, that: ‘In any case in which a judgment has bеen entered awarding the custody of a minor, on the motion of any party
or on the motion of the court
that portion of the judgment effecting visitation rights between the parties and their, minor children may be subject to review and modification or altеration . . .’ ”
Lawrence v. Day,
3. However, we аre unable to agree with the determination by the Superior Court of Clarke County that res judicata does not attach in the context of awards of visitation rights. In its order, the Clarke County Superior Court concluded that, pretermitting the 1977 Clayton County order, it was entitled to “relitigate” the issue of appellant’s molestation of the child and base a modification of appellant’s visitation rights on its finding that such molestation in fact occurred. All inсidents of alleged sexual molestation which the trial judge in the instant case found did in fact occur predate the 1977 award of visitation rights to appellant by the Superior Court of Clayton County. There is no contention whаtsoever that appellant
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has committed any acts of molestation since the 1977 award of visitation rights. See
Bowers v. Bowers,
Applying thе principles of res judicata to the relevant circumstances in the instant case, it is apparent that appellant’s sexual molestation of the child was made an issue in the 1977 visitation rights proceeding in Claytоn County and was before the Clayton County judge who made the award of extended visitation rights to appellant at that time. See
Bowers v. Bowers,
4. Remaining enumerations of error have been considered and are found to be without merit. Appellant affirmatively waived any right of access to the investigatory reports of the Department of Family and Children Services ordered by the trial judge.
Brown v. Brown,
5. In accordance with Division 3 of this opinion the order оf the Superior Court of Clarke County modifying appellant’s visitation rights is reversed and the case remanded for the entry of a new order in which issues previously resolved in the 1977 Clayton County award are not “relitigated.”
Judgment reversed and case remanded.