Daniel v. Daniel, A98A0812.
| Decision Date | 10 November 1998 |
| Docket Number | No. A98A0812.,A98A0812. |
| Citation | 235 Ga. App. 184,509 S.E.2d 117 |
| Parties | DANIEL v. DANIEL. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Shelby A. Outlaw, Decatur, for appellant.
Arline S. Kerman, Atlanta, for appellee.
Sharon and Russell Daniel were divorced in August 1992, with Sharon receiving primary physical custody of their minor child. On September 11, 1995, Russell filed a petition for change of custody. A temporary hearing was held on April 19, 1996, following which the trial court entered a temporary order allowing Sharon to retain primary physical custody. After a bench trial on February 6, 1997, the trial court entered a final judgment awarding Russell sole physical and legal custody of the child. Sharon appeals, asserting numerous errors. Because these asserted errors are without merit, we affirm.
1. In several enumerations, Sharon Daniel argues that the evidence did not support the trial court's change of custody. We do not agree.
A parent who has been awarded custody pursuant to a divorce decree has a prima facie right to retain such custody, and a trial court in a modification action should ordinarily favor such parent. Ormandy v. Odom, 217 Ga.App. 780-781(1), 459 S.E.2d 439 (1995); see also Triplett v. Elder, 234 Ga. 243, 215 S.E.2d 247 (1975). In order to change custody, the trial court (Citations and punctuation omitted.) Ormandy, supra at 781(1), 459 S.E.2d 439. (Punctuation omitted.) Dearman v. Rhoden, 235 Ga. 457, 459(4), 219 S.E.2d 704 (1975); see also Crumbley v. Stewart, 238 Ga. 169-170, 231 S.E.2d 772 (1977). But see Bisno v. Bisno, 238 Ga. 328, 232 S.E.2d 921 (1977) ().
In this case, there was reasonable evidence supporting the trial court's decision to transfer custody to the father. When the Daniels were divorced in August 1992, Sharon was a smoker. In November 1993, the child was diagnosed with asthma. At that time, Sharon and the child were living in an apartment with Sharon's boyfriend, who also smoked. After the child was diagnosed with asthma, Sharon continued to smoke in front of the child until January 1994, when she broke up with her boyfriend and moved into a new apartment. After she and the child moved into the new apartment, Sharon continued to smoke approximately ten cigarettes per day, although she testified that she smoked only in the bathroom or outside. She claimed that she stopped smoking altogether in November 1996, about three months before trial. However, she later admitted that she had "broken down" on occasion and smoked since then. The trial judge expressly stated that she did not believe Sharon's testimony that she had stopped smoking. The child's medical records showed that she had made several trips to the doctor for asthma or other respiratory-related matters in the approximately three years before trial.
The fact that the child was diagnosed with asthma after the divorce clearly constitutes a change in circumstances making the mother's smoking a factor relevant to the child's welfare. Neither party contests the fact that smoking can be an irritant to an individual with asthma. Although there was no direct medical testimony that the mother's smoking aggravated the child's condition, there was evidence that the child had to go to the doctor on several occasions because of her asthma or other respiratory problems. While the mother claimed she smoked only in the bathroom, the trial court could reasonably conclude that smoking up to ten cigarettes a day in the bathroom of a confined apartment is likely to cause irritation to the child. Moreover, the fact that the mother continued to smoke inside the apartment for almost three years after the child was diagnosed suggests that she was not adequately concerned about the child's health. Indeed, the trial court noted that, at the temporary hearing almost a year earlier, it had advised the mother to quit smoking for the child's health, but that the mother had disregarded this advice. Furthermore, there was evidence that for a long period of time the mother did not know the name of the child's doctor and had not spoken with him about the child's asthma.
It is not our function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments as to the welfare of the child. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is reasonable evidence to support it. See Dearman, supra. Because there was reasonable evidence to support the trial court's ruling, we cannot say that it abused its discretion in transferring custody to the father. The fact that the guardian ad litem recommended against a transfer of custody does not change this result, since there was evidence to support the trial court's judgment.
2. Sharon Daniel contends the trial court erred in considering...
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