Arp v. Hammonds

Banke, Presiding Judge,

dissenting.

Although the trial court is given a wide discretion in resolving custody disputes between parents, that discretion is not totally unfettered. “[A] showing of changed conditions of an out-of-custody parent, without a showing of its material effect on the child, is insufficient to warrant a change in custody.” Robinson v. Ashmore, 232 Ga. 498, 502 (207 SE2d 484) (1974). “[T]he trial judge is . . . restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child. (Cit.)” Young v. Young, 216 Ga. 521, 522 (118 SE2d 82) (1961).

I find no evidence in this case that the relative circumstances of the parties have changed since the entry of the divorce decree in such a manner that an award of custody to the mother would result in any material benefit to the children. The trial court found that either parent would be a fit and proper custodian, and the principal of the children’s school, who was the only disinterested witness to testify in the case, stated that “[t]he children are doing very well in school, and . . . seem to be thriving in the atmosphere in which they are at this time.” To all appearances, what we have here is simply a situation where the mother left the children in the care and custody of the father while she went off to establish a new life and then, when she found it convenient to do so, returned for them. At no point during the interim, not even after she had remarried and achieved financial stability, did she make any financial contribution to the cost of supporting the children. Had it been the father who had acted in this manner rather than the mother, it is difficult to imagine that the *720court would have ordered a change in custody.

The trial court’s conclusion that a change in custody was warranted was based on a determination that the following material changes in circumstances had occurred since the entry of the parties’ divorce decree: (1) The father had sold the marital residence and moved into an apartment adjacent to his parents in violation of his promise “to remain in the marital residence for stability purposes for the minor children”; (2) he had “established a pattern of wilful violations of the divorce decree including, but not limited to, refusing to consult with [the mother] as the divorce decree required; refusing to allow the children to communicate with [her] over the phone; refusing . . . her summertime visitation; and . . . physically and mentally harming [her] . . .”; and (3) the mother had “experienced positive material changes in her circumstances affecting the welfare and best interests of the children” in that she had “remarried, . . . reached financial stability and . . . purchased a new home.” However, the transcript contains no evidence of any “pattern” of violations of the divorce decree by the father, nor is there any evidence to support a conclusion that the children’s welfare would be materially enhanced by a change of custody.

With respect to the finding that the father had broken a promise to remain at the marital residence, there is no indication that the parties’ separation agreement contained any provision specifying where he and the children would reside, see Moore v. Wiggins, 230 Ga. 51, 54 (195 SE2d 404) (1973), nor is there any indication that the mother complained of the father’s decision in this regard at any time prior to the hearing on her change-in-custody petition. Moreover, the evidence indicates without dispute that this change of residence had a salutary effect on the children in that it had allowed their paternal grandparents to be actively involved in raising them. Although the positive change which the mother experienced in her financial circumstances certainly had the potential for enhancing the children’s welfare, it was not necessary to award her custody of the children to afford them the benefit of this improvement. Rather, the court could simply have ordered her to contribute to their support.

While it has been held that “a pattern of continued wilful acts . . . intended to thwart and nullify the visitation provisions of the [divorce] decree” will support a change in custody from one parent to another, Moore v. Wiggins, supra, 230 Ga. at 55, there was no showing of any such “pattern” in this case. Reprehensible though the father’s conduct in assaulting the mother in July of 1989 may have been, it appears to have been an isolated incident; and there is no suggestion that the children witnessed it or were otherwise aware of it. With respect to the father’s failure to consult with the mother on decisions affecting the children’s health, welfare, and education, the mother of*721fered no testimony that any such decisions had been made without consulting her but merely testified that the father had failed to keep her informed about school and religious functions. With regard to visitation, it appears that the father had in fact allowed the mother more visitation than she was entitled to under the terms of the divorce decree, permitting her to have the children every other weekend although the decree specified that she was only entitled to such visitation two weekends per month. Although the mother testified that the father had refused during the summer in which the hearing was held to give her two of the four weeks of visitation to which she was entitled, the hearing took place in early August, meaning that there was still time for him to comply with his obligation in this regard. Although the mother indicated that there had been occasions in the past when the father had not allowed her to talk to the children on the telephone, she recounted only one such incident, which she attributed to his anger at her having given them haircuts without consulting him.

Decided July 15, 1991 Reconsideration denied July 30, 1991 Murphy, Murphy & Garner, Michael L. Murphy, Julie K. Wil*722Hams, for appellant.

*721What the evidence in this case establishes is not a pattern of attempts by the father to frustrate the mother’s visitation rights under the divorce decree but rather a pattern of overall compliance by the father with the visitation provisions of the decree, punctuated by few isolated incidents of jealous or hostile behavior on his part. It appears most unlikely that these incidents constituted the motivating factor behind the petition for change of custody, since virtually all of them occurred during the first year following the parties’ divorce, yet the petition was not filed until months later, after the mother had remarried and the relationship between the parties had become less volatile. This chronology strongly suggests that it was the mother’s remarriage and the attendant enhancement of her domestic and financial resources, rather than any difficulty in exercising her visitation rights or communicating with the children, which prompted her to seek a change of custody. Because the children could be afforded the benefit of the improvement in the mother’s financial circumstances through the remedy of periodic support payments, and because there is no evidence whatever indicating that their welfare would be otherwise enhanced by a change of custody to her, I would hold that the trial court erred in ordering such a change and would remand the case for a hearing on the father’s counterclaim for child support.

I am authorized to state that Chief Judge Sognier, Presiding Judge McMurray, and Judge Pope join in this dissent.

*722Tisinger, Tisinger, Vance & Greer, Paul E. Weathington, for appellee.