Kennedy v. Adams, s. A95A0312
| Decision Date | 07 July 1995 |
| Docket Number | A95A0684,Nos. A95A0312,s. A95A0312 |
| Citation | 218 Ga.App. 120,460 S.E.2d 540 |
| Parties | KENNEDY v. ADAMS. ADAMS v. KENNEDY. GOLD v. ADAMS. , and A95A0313. |
| Court | Georgia Court of Appeals |
Alice C. Stewart, Atlanta, for appellant (case no. A95A0312).
Sumner & Hewes, David A. Webster, Atlanta, for appellant (case no. A95A0313).
M. Debra Gold, pro se.
Smith & Diment, Dana G. Diment, Carrollton, for appellee.
Defendant Kennedy is the single mother of four children. Plaintiff Adams is the father of one of these children who initiated this action by filing a petition seeking custody of his daughter. Defendant's answer opposed plaintiff's request for custody of the child and her counterclaim sought modification of the visitation and child support provided in a consent judgment entered in a prior legitimation action. The superior court entered an order denying any change of custody but modifying visitation and child support.
Separate applications for discretionary appeal were then submitted to this court by plaintiff, defendant, and the child's guardian ad litem, Gold. All of these applications were granted resulting in these three companion appeals. Defendant Kennedy and guardian ad litem Gold maintain that the change in visitation is improper in that it amounts in substance to a change in custody. This is the sole issue presented in the appeal of the guardian ad litem Gold, Case No. A95A0313, and is also presented in Case No. A95A0312, where defendant raises an additional issue concerning the failure of the judgment below to explain the deviation in the new level of child support from the statutory guidelines. In Case No. A95A0684, plaintiff Adams appeals the refusal of the superior court to award him custody of his daughter and complains of the legal standard applied in reaching that decision. Held:
1. Three of plaintiff's enumerations of error in Case No. A95A0684 challenge the standard applied by the superior court in determining the custody issue. Prior to the legitimation proceeding, custody was in the mother pursuant to OCGA § 19-7-25. Upon legitimation the father stands in the same position as any other parent as to custody of the child. Sims v. Pope, 228 Ga. 289, 291, 185 S.E.2d 80. Prior to the judgment of legitimation, plaintiff had no standing to raise any issue as to custody of the child. Hall v. Hall, 222 Ga. 820, 821, 152 S.E.2d 737. Also, while legitimation provides standing to the father, it does not effect a change in custody. Gregg v. Barnes, 203 Ga.App. 549, 550(1), 551, 417 S.E.2d 206. Whereas in Gregg, supra, the parties consent to consideration of the issue of custody in a legitimation proceeding and the trial court does not lack jurisdiction of the parents, child, and subject matter, the custody issue may be resolved in the legitimation proceeding. Where there is no such consent, the custody of the child living with the mother is not changed upon legitimation and any change of custody can come about only if a subsequent custody action is filed.
In the case sub judice, there is no evidence of consent by plaintiff Adams or defendant Kennedy to consideration of the custody issue in connection with the legitimation proceeding. Nor may such consent be implied from the fact that the judgment in the legitimation action contains provisions for child support and visitation. Such findings as these are authorized in a legitimation proceeding by OCGA § 19-7-51 and while it is argued that under this statute plaintiff had an opportunity to be heard on the custody issue, this is not correct since this supposition cannot be reconciled with the cases which continue to hold that the father lacks standing to contest custody prior to judgment in a legitimation proceeding. Since visitation issues are a part of but less than all of the custody question and insofar as a provision for visitation by the non-custodial father is a modification of the custody of the mother, OCGA § 19-7-51 must represent a provision for modification of custody within the legitimation proceeding without altering the father's lack of standing to seek a change of custody. This scheme is somewhat analogous to the provisions which provide the trial courts with broad discretion to modify visitation rights even where there is no change in conditions such as required for a change of custody. See Tirado v. Shelnutt, 159 Ga.App. 624, 626(2), 284 S.E.2d 641 and OCGA § 19-9-3(b).
Before concluding that there has been no prior adjudication of the custody issue, it is necessary to acknowledge a third action filed a few months after the judgment in the legitimation proceeding. This third action, an earlier attempt by plaintiff Adams to establish or modify custody, was dismissed without prejudice. One of the three elements of the doctrine of res judicata is an adjudication by a court of competent jurisdiction. In this previous custody case there was no adjudication, consequently the interlocutory orders in that case, including one which at least implies in its holding that the custody issue had been resolved in the legitimation case, are not res judicata. Williamson v. Ward, 192 Ga.App. 857, 859(3), 386 S.E.2d 727.
In the first instance, a custody dispute between parents is decided on the basis of the best interest of the child. OCGA § 19-9-3(a); Mitchell v. Ward, 231 Ga. 671, 672, 203 S.E.2d 484. Thereafter, before custody can be changed, the trial court must find that since the last award there has been a material change of condition affecting the well being of the child. OCGA § 19-9-1; Templeman v. Earnest, 209 Ga.App. 557, 558, 434 S.E.2d 106.
In the case sub judice, ...
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