Smith v. Smith

Hill, Justice,

dissenting.

By amendment appellee prayed for modification of visitation rights from "reasonable visitation” to specific hours every other Wednesday.

*204In my view, the trial court had authority to change the appellee’s visitation rights pursuant to Ga. L. 1976, p. 1050, where it was provided that: "In any case in which a judgment has been 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 alteration, but not more often than once in each two-year period following the date of the entry of such judgment, without the necessity of any showing of a change in any material conditions and circumstances of either party or the minor. The provisions of this Code section shall not limit or restrict the power of the court to enter a judgment relating to the custody of a minor in any new proceedingbased upon a showing of a change in any material conditions or circumstances of a party or the minor.” (Emphasis supplied.)

That is what the trial judge did. The statute authorized him to do so. No attack has been made upon the statute. The majority prefers to follow a 1974 decision of this court rather than a 1976 Act of the General Assembly. Moreover, in that 1974 case, Henderson v. Henderson, 231 Ga. 577 (203 SE2d 183) (1974), there was no prayer for modification of visitation rights. Visitation rights had been previously modified and that decision dealt solely with an action for contempt.

I acknowledge that prior to 1976 a motion for change of visitation was not a "motion” at all but was a new action. However, the General Assembly in 1976 enacted legislation providing that the court can change visitation on motion. My colleagues have cited no authority for the proposition that the General Assembly cannot change the law. I therefore dissent.

I am authorized to state that Justice Hall joins in this dissent.