Bodne v. Bodne

• Decision Date: 08 October 2002
• Docket Number: No. A02A1380.,A02A1380.
• Citation: 257 Ga. App. 761,572 S.E.2d 95
• Parties: BODNE v. BODNE.
• Court: Georgia Court of Appeals

572 S.E.2d 95

257 Ga. App. 761

BODNE v. BODNE.

No. A02A1380.

Court of Appeals of Georgia.

October 8, 2002.

Warner, Mayoue & Bates, John C. Mayoue, Atlanta, Pamela J. Gray, Hope C. Allen, for appellant.

James M. Allison, Jr., Douglasville, for appellee.

MILLER, Judge.

David Jerome Bodne appeals from the trial court's order granting his ex-wife's claim to become the primary physical custodian of their two minor children after he moved to Alabama. On appeal he contends that the trial court erred by awarding primary custody to his ex-wife, because, as the primary physical custodian of the children at the time of the divorce, Bodne had a prima facie right to retain custody of the children despite moving out of state with them. Since the final divorce decree and signed agreement between the parties clearly designated Bodne as the primary physical custodian of the children, we agree with him and reverse.

The record reveals that the parties were divorced in December 1999 and agreed to an arrangement of joint legal custody of their two children, with the father being designated as the children's primary physical custodian: "The parties shall have joint legal custody with Husband having primary physical custody of the aforesaid minor children.... The parties agree to share the children an equal amount of time, including the holidays. The parties anticipate rotating the children between the parties every two weeks." The agreement also provided that Bodne would be responsible for maintaining the children's medical and dental insurance and paying all expenses for the children's clothing and extracurricular activities.

Bodne remarried and in March 2001 informed his ex-wife that he planned to move with the children to Alabama. Bodne then filed a petition to modify his ex-wife's visitation schedule to accommodate the upcoming move. Bodne's ex-wife filed a counterclaim, seeking primary physical custody of the children. She argued that Bodne's move constituted a substantial change in a material condition sufficient to warrant a change in custody. Bodne moved to Alabama with his new wife and the two children in June 2001.

At the hearing on Bodne's motion to modify visitation, Bodne presented testimony that the children were doing well in school and were adjusting very well to their new home. Bodne's ex-wife presented evidence that she had sought treatment for, and overcome, her substance abuse problem and was happily remarried to a supportive husband, and that she shared a special bond with her children. No testimony was presented, however, that the children's move with the father had any adverse effect on the children.

The court found that both parents were fully capable of caring for the children and held that "there had been a substantial change in a material condition sufficient to justify a modification of custody." The court reasoned that in light of the parties' prior agreement to share time with the children on a nearly 50-50 basis, Bodne's decision "to move out of state ... rendered this important aspect of the parties' agreement impossible to implement." The court then changed the prior custody arrangement between Bodne and his ex-wife by designating Bodne's ex-wife as the new primary physical custodian of the children. Bodne appeals from this order.

Bodne contends that the trial court erred by changing primary physical custody from...