Barger v. Barger, 31856
| Decision Date | 08 February 1977 |
| Docket Number | No. 31856,31856 |
| Citation | 232 S.E.2d 567,238 Ga. 334 |
| Court | Georgia Supreme Court |
| Parties | Dean D. BARGER, Jr. v. Alexandra M. BARGER. |
Carl J. Surrett, Augusta, for appellant.
Jolles & Slaby, Richard A. Slaby, Augusta, for appellee.
This appeal is from a judgment changing the custody of minor children from the father to the mother. The father had been granted custody in a divorce action in which the agreement of the parties was made the judgment of the court.
The mother's complaint alleged in count one that the provision of the agreement relative to custody should be stricken because it was executed by her while she was in a highly emotional state and laboring under the influence of her husband. Count two alleged that custody should be changed because of a change of conditions detrimental to the welfare of the children.
1. The first error enumerated is the award of custody to the mother. There is 'reasonable evidence' in the record to support the decision made by the trial judge to change the custody of the children to the mother, and his decision is affirmed. Robinson v. Ashmore, 232 Ga. 498, 500, 207 S.E.2d 484 (1974); Solomon v. Solomon, 235 Ga. 363, 219 S.E.2d 715 (1975); Alexander v. Alexander, 235 Ga. 540, 221 S.E.2d 13 (1975); Horne v. Horne, 236 Ga. 270, 223 S.E.2d 666 (1976).
2. It is next asserted that the trial judge erred in failing to make findings of fact and conclusions of law. On request of this court, the trial judge has filed his findings of fact and conclusions of law with this court.
3. Enumerated error 3 asserts that the trial judge abused his discretion in setting the visitation rights of the father. Visitation rights were allowed every other weekend at the home of the mother. While these visitation rights were restrictive, they were within the discretion of the trial judge. Schowe v. Amster, 236 Ga. 720, 722(5), 225 S.E.2d 289 (1976).
4. The fourth error enumerated is the award of attorney fees to the mother. The trial judge had no authority to award attorney fees in this case and we reverse this portion of the judgment. Wilkins v. Wilkins, 234 Ga. 404, 406, 216 S.E.2d 302 (1975).
5. There is no merit in the fifth enumerated error, which contends that the judge erred in failing to grant the father's motion for continuance.
6. It is contended in the sixth enumerated error that the court erred in failing to grant the father's motion to dismiss Count 1 of the complaint seeking to strike the custody provision of the agreement between the parties.
The judge informed the parties that he would not strike any provision of the agreement. It is plain from his order that the change of custody was granted on the ground of changed conditions. The judgment was not affected by his failure to dismiss the first count of the complaint, and it is unnecessary to determine whether this count was subject to dismissal.
7. In enumerated error 7 it is contended that the complaint should have been dismissed for lack of jurisdiction. There was no written motion to dismiss on the ground that the father was a nonresident, and such contention was not made in the answer. The motion to dismiss was an oral motion made at the commencement of the hearing. The defense of lack of venue was therefore waived. Code Ann. § 81A-112(h)(1) (); Daniel v. Yow, 226 Ga. 544(3), 176 S.E.2d 67 (1970).
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...court clerk's office, to be transmitted to this court. Walker v. Walker, 238 Ga. 273, 274(2), 232 S.E.2d 554 (1977); Barger v. Barger, 238 Ga. 334(2), 232 S.E.2d 567 (1977). In other cases, we have reversed the judgment and remanded the case for the entry of a new judgment which will includ......
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...only legal and admissible evidence, unless the record clearly indicates that the contrary is true. [Cit.]" Barger v. Barger, 238 Ga. 334, 335-336(9), 232 S.E.2d 567 (1977). Where the trial court alone tries the case, the presumption is that the judgment was rendered only upon competent and ......
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...and, "[w]hile these visitation rights were restrictive, they were within the discretion of the trial judge. [Cit.]" Barger v. Barger, 238 Ga. 334(3), 232 S.E.2d 567 (1977). See also Schowe v. Amster, 236 Ga. 720, 722(5), 225 S.E.2d 289 Regretfully, this court has not taken the present oppor......