Buck v. Buck

• Decision Date: 10 March 1977
• Docket Number: No. 32011,32011
• Citation: 233 S.E.2d 792,238 Ga. 540
• Parties: Sidney Benjamin BUCK v. Deborah Lynn BUCK.
• Court: Georgia Supreme Court

Page 792

233 S.E.2d 792

238 Ga. 540

Sidney Benjamin BUCK v. Deborah Lynn BUCK.

No. 32011.

Supreme Court of Georgia.

March 10, 1977.

Stanley C. Coker, Atlanta, for appellant.

Leonard N. Steinberg, Paul E. Cormier, Forest Park, for appellee.

NICHOLS, Chief Justice.

The appellant-husband appeals from a final divorce decree awarding his wife custody of their 18-month-old child "until such time as the said child reaches the age of 30 months," at which time psychological evaluations of both parties and the child are to be submitted to the court for a determination of which one gets "permanent custody thereafter." The issues of alimony and property division remain to be tried. The case is before this court on interlocutory appeal.

1. Appellant contends that the trial court's attempt to require a re-evaluation of the custody issue when the child reaches the age of 30 months is an invalid attempt to retain jurisdiction of the matter and asks that the issue be remanded for redetermination. This court has repeatedly held that: " 'A judgment fixing the custody of a minor child of divorced parents is a final one on the facts then existing, and any attempt by the trial judge to retain jurisdiction of the child is a nullity.' Perry v. Perry, 212 Ga. 668(1), 95 S.E.2d 2 (1956); Hanson v. Stegall, 208 Ga. 403(1), 67 S.E.2d 109 (1951); Evans v. Allen, 212 Ga. 193(1), 91 S.E.2d 518 (1956); Martin v. Hendon, 224 Ga. 221(1), 160 S.E.2d 893 (1968); Bragg v. Bragg, 224 Ga. 733(1), 164 S.E.2d 560 (1968); Taylor v. Taylor, 231 Ga. 742, 743(1), 204 S.E.2d 129 (1974)." Simpson v. Moon, 238 Ga. 152, 153, 231 S.E.2d 754, 755 (1977). The fact that the trial judge stated that he was entering a "temporary order of a permanent nature" rather than a permanent order does not take this case outside of the foregoing authorities so as to require that the award of custody to the wife be vacated. See Burton v. Furcron, 207 Ga. 637, 640, 63 S.E.2d 650 (1951). The language in the decree attempting to retain jurisdiction is simply a nullity, and it is hereby ordered stricken. Simpson v. Moon, supra, 238 Ga. at p. 153, 231 S.E.2d 754.

2. Appellant contends that the court abused its discretion in awarding custody to the wife where she admitted to a past homosexual relationship and continued to maintain friendships with persons who were homosexual; where it was shown that the father would be just as good a parental guardian as the mother; and where the award to the mother was based on the court's subjective opinion, unsupported by evidence, that a strong psychological "affinity" exists between a young child and its mother. "Our function on appeal is not to make an independent judgment about the custody of the child but only to determine if there is any reasonable evidence in the trial transcript to support the decision of the trial court . . . See Dyar v. Stovall, 230 Ga. 653, 198 S.E.2d 679 (1973), and Robinson v. Ashmore, 232 Ga. 498, 207 S.E.2d 484 (1974)." Horne v. Horne, 236 Ga. 270, 223 S.E.2d 666 (1976). The transcript contains reasonable evidence which would support an award of...