Livesay v. Hilley, 77576

• Decision Date: 15 February 1989
• Docket Number: No. 77576,77576
• Citation: 379 S.E.2d 557,190 Ga.App. 655
• Parties: LIVESAY v. HILLEY.
• Court: Georgia Court of Appeals

Page 557

379 S.E.2d 557

190 Ga.App. 655

LIVESAY v. HILLEY.

No. 77576.

Court of Appeals of Georgia.

Feb. 15, 1989.

Rehearing Denied March 9, 1989.

Certiorari Denied April 19, 1989.

Hudson & Montgomery, James Hudson, Athens, for appellant.

B. Lane Fitzpatrick, Danielsville, for appellee.

POPE, Judge.

We granted Tina Hilley Livesay's application to appeal an order of the Superior Court of Madison County changing custody of the parties' three-year-old daughter to the natural father.

The record shows that the parties were divorced on October 7, 1987 and custody of the minor child was awarded to the mother. On November 20, 1987, the father filed a petition seeking a change in custody contending there had been a material change in circumstances affecting the welfare of the child based on the assertion that the mother was living with a man to whom she was not married. Although appellant did not dispute the fact of cohabitation, and admitted that Tommy Livesay began living with her and the minor child in late October, she contended that such relationship was not meretricious because she and Livesay had entered into a common law marriage. The appellant and Livesay were subsequently married in a ceremony held on December 19, 1987.

On January 5, 1988, a hearing was held on appellee-father's change of custody petition. At that hearing appellant presented witnesses who testified that around late October or early November the parties introduced themselves as common-law husband and wife. Appellant testified that she and Livesay did not have a ceremonial marriage when they began living together in October "because we wanted to make sure [the minor child] would adjust before we jumped in or pushed her into something that she was not ready for or that we were not ready for...."

Following the hearing the superior court entered an order finding that the parties had not entered into a common law marriage when they began cohabiting in late October. The court also found that the minor child had been adversely affected by these living arrangements and transferred custody to the father. The court denied the appellant's motion for new trial and we granted her application for discretionary appeal.

1. Appellant first enumerates as error the trial court's finding that the ceremonial marriage subsequent to the common-law marriage precluded the validity of the latter. Although a letter attached to the court's order suggests that it questioned the necessity of such a ceremony in light of the appellant's contention that she was married pursuant to the common law, in its order the court relied not on this factor but on appellant's testimony that she and Livesay wanted to ensure that the child would adjust to having Livesay in the home. Based on this testimony the court found "that at the time [appellant and Tommy Livesay] began living together [they] did not have a present intention to be married, but rather the possibility of marriage in the future based upon whether or not the minor child, ... was comfortable with Mr. Livesay." We agree with the trial court that the evidence, specifically the testimony of the mother, supports the trial court's conclusion that at the time they began living together appellant and Livesay lacked the requisite present intent to marry and hence a valid common-law marriage was not shown. See, e.g., Peacock v. Peacock, 196 Ga. 441, 26 S.E.2d 608 (1943). Consequently, this enumeration is without merit.

2. It does not necessarily follow, however, that the trial court correctly concluded that a change of custody was warranted under the facts of this case. " 'The award of custody of a child of the parties in a divorce decree is conclusive unless...