Mahan v. McRae

Smith, Judge,

dissenting.

I respectfully dissent, because I conclude that the trial court, in a thoroughly reasoned order, acted within its discretion in awarding primary physical custody to the father.

The decision of whether to change custody after the entry of a final divorce decree rests exclusively within the discretion of the trial judge, and an appellate court’s scope of review of such a decision is severely limited. As explained in Arp v. Hammonds, 200 Ga. App. 715, 716 (409 SE2d 275) (1991), the task of a trial court faced with a change of custody suit is to determine “whether there has been a change of conditions affecting the welfare of the child.” (Citations and punctuation omitted.) The court must exercise its discretion to decide whether a change in custody is in the child’s best interest and whether a change will best promote the welfare and happiness of the child. Id. at 716-717. And

[t]his rule of law lays the Solomonic task squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. It is that judge upon whom it is incumbent to hear evidence with respect to changed conditions and render a decision based upon that judge’s discretion and good judgment as that judge viewed the evidence, giving primary consideration to the welfare of the child. . . . Unless the record before this court clearly indicates that the judge based his or her decision upon illegal evidence or upon a misapprehension of the law, it will be presumed that upon rendering his or her decision he or she considered only legal and admissible evidence. So it is that the remote reviewing court recognizes not only the physical limitations put upon it by distance in time and space, but it also recognizes that by law it has no judgment to impose in the matter. The exercise of discretion is granted solely and exclusively to the trial *114judge, and if there is any reasonable evidence to support the trial court’s decision concerning change of custody as between parents, such decision will be affirmed on appeal.

(Citations and punctuation omitted; emphasis in original.) Id. at 717.

Here, nothing in the record suggests that the trial court’s decision was based on “illegal evidence” or a “misapprehension of the law,” and reasonable evidence existed on which the trial court based its conclusions. I cannot agree with the majority’s statement that “[t]he facts support only the conclusion that [the father] was thwarted in his attempt to be involved with the boys more than the custody order required, and that the parties have been almost incapable of agreeing to any variances from the custody order.” On the contrary, the facts support the trial court’s conclusion that the children suffered emotionally because of the mother’s consistent refusal to cooperate with the father’s own efforts to be actively involved in their lives, resulting in a material change of condition. For example, in addition to evidence that the children appeared to be “clingy,” evidence was presented of the children’s increased fearfulness of losing their relationship with the father and their lack of self-assurance, conditions which manifested themselves after their move to Massachusetts.

Furthermore, evidence was presented supporting the trial court’s conclusion “that the children’s best interests are served by allowing them to have the most possible contact with both parents.” As pointed out by the father in his brief on appeal, evidence was presented that the children had a large support network in the LaGrange area, including both parents’ lifelong friends as well as extended family of both the father and mother. And as noted in the report of the guardian ad litem, if the children were to reside in Georgia, the mother would enjoy the advantage, because she has relatives in LaGrange, of visiting with the children at her convenience, as opposed to the disadvantage to the father of being required to stay in a hotel and rent a car in Massachusetts, if custody was awarded to the mother. Based on these circumstances, I cannot agree with the majority that the trial court’s conclusion was unsupported by reasonable evidence. Because the trial court was the sole judge of witness demeanor and credibility and because that court’s conclusions were supported by the evidence, this court cannot substitute its judgment for that of the trial court or usurp that court’s discretion. See Arp, supra. I would affirm the decision of the trial court.

I am authorized to state that Presiding Judge Blackburn and Judge Ellington join in this dissent.

*115Decided November 24, 1999 Crumbley & Crumbley, R. Alex Crumbley, for appellant. Smith, Welch, Studdard & Brittain, Benjamin W. Studdard III, Thomas B. McFarland, Kutner & Bloom, Jeanney M. Kutner, for appellee. John R Partin, amicus curiae.