Edwards v. Edwards, 31386

• Decision Date: 20 October 1976
• Docket Number: No. 31386,31386
• Parties: Margaret Ann EDWARDS v. Jesse Talton EDWARDS.
• Court: Georgia Supreme Court

Page 632

229 S.E.2d 632

237 Ga. 779

Margaret Ann EDWARDS v. Jesse Talton EDWARDS.

No. 31386.

Supreme Court of Georgia.

Oct. 20, 1976.

Sparrow & Walhausen, Marietta, for appellant.

Robert L. Cork, Valdosta, for appellee.

HILL, Justice.

Margaret Ann Edwards appeals from an order of the Lowndes Superior Court awarding the father permanent custody of their child following their divorce.

1. She contends that the trial court erred in awarding custody of their eleven-year-old daughter to the father. At the custody hearing, the trial court had ample evidence before it from which to determine the proper placement of custody. We find no abuse of discretion.

2. The custody award also ruled that the mother 'shall have the right to visit with the child and have the child visit with her, at reasonable and convenient times and places.' The mother argues that this order, in effect, deprives her of visitation rights under the facts of this case because the father lives in Lowndes County and she lives in Cobb County, a distance of over 200 miles, and the relationship between the parties has been such that he can be expected not to allow her 'reasonable' visitation privileges. As was stated in Davis v. Coggins, 232 Ga. 508, 509, 207 S.E.2d 490, 491 (1974): 'Where the parties are unable to agree upon 'reasonable visitation rights,' this may be tantamount to a complete denial of visitation rights.'

The mother cites Smith v. Smith, 225 Ga. 241, 167 S.E.2d 597 (1969), and argues that unless she enumerates error in this appeal on the reasonable visitation provision, she will be required to show a change of condition affecting the child before she can obtain a modification of the original award to provide for specific visitation rights.

It should be noted that in recent cases coming before this court on petition to modify, where the trial judge has changed 'reasonable' visitation to specific visitation, this court has agreed with the trial judge's finding of some change of condition affecting the child authorizing the change from 'reasonable' to specific. See Howell v. Howell, 232 Ga. 537, 207 S.E.2d 492 (1974); Williamson v. Brazell, 236 Ga. 798, 225 S.E.2d 304 (1976); Homans v. Street, 237 Ga. 649, 229 S.E.2d 432 (1976).

Moreover, Ga.L.1976, p. 1050, added the following to three Code sections (§ 30-127, § 50-121, § 74-107): 'In any case in which a judgment has been entered awarding the custody of a minor, on the motion of any party or on the motion of the court that portion of the judgment effecting visitation rights between the parties and their minor children may be subject to review and modification or alteration, but not more often than once in each two-year period following the date of the entry of such judgment, without the necessity of any showing of a change in any material conditions and circumstances of either party or the minor. The provisions of this section shall not limit or restrict the power of the court to enter a judgment relating to the custody of a minor in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the minor.' We read this amendment to have the effect of overruling the holding in Smith v. Smith, supra. In addition, we read this amendment as allowing a trial judge, who has made an award of permanent custody with 'reasonable' visitation privileges, to provide specific visitation privileges once in the two-year period following the date of entry of such judgment. See Welch v. Welch, 213 Ga. 589(1), 100 S.E.2d 431 (1957).

However, neither the 1976 amendment nor the Howell, Williamson and Homans cases, supra, completely disposes of the issue before us, which is: Was it error under the facts of this case for the trial judge to provide for 'reasonable,' as opposed...