Ormandy v. Odom, A95A0366

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtJOHNSON; BIRDSONG, P.J., and SMITH
Citation217 Ga.App. 780,459 S.E.2d 439
Docket NumberNo. A95A0366,A95A0366
Decision Date23 June 1995

Leaphart & Johnson, J. Alvin Leaphart, Jesup, for appellant.

Robert B. Smith, Jesup, for appellee.


When the Ormandys divorced in 1989, the court awarded permanent custody of their two children to the father. In 1994, after learning that the father's employer was transferring him to Illinois, the mother filed a petition for change of custody claiming there were material changes of conditions affecting the welfare of the children. The trial court granted her petition and we granted the father's application for discretionary appeal.

1. In two enumerations of error, the father contends the trial court erred in finding a material change of condition impacting the welfare of the children and warranting a change of custody. The court based its decision on its findings that the children were closer emotionally to their mother, that the mother's financial, social and emotional situation improved substantially since the divorce, and that the mother and the paternal grandparents, all residents of Wayne County, were the children's primary source of nurture and security. The court concluded that moving the children to Illinois would cause them substantial distress and emotional trauma.

"In a contest between the parents, the award of custody by a divorce court vests the custodial parent with a prima facie right. Hill v. Rivers, 200 Ga. 354 (37 SE2d 386) (1946). Ordinarily, the trial court should favor the parent having such a right. Triplett v. Elder, 234 Ga. 243 (215 SE2d 247) (1975).... What the court must affirmatively find is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare. Bell v. Bell, 154 Ga.App. 290 (267 SE2d 894) (1980). It is a change for the worse in the conditions of the child's present home environment rather than any purported change for the better in the environment of the non-custodial parent that the law contemplates under this theory. Dearman v. Rhoden, [235 Ga. 457 (219 SE2d 704) (1975) ]; Bowen v. Bowen, 223 Ga. 800 (158 SE2d 233) (1967)." (Emphasis in original.) In re M.M.A., 166 Ga.App. 620, 625(2), 305 S.E.2d 139 (1983). Although trial courts have wide discretion in change of custody proceedings, there are limits to that discretion. Bisno v. Bisno, 238 Ga. 328, 232 S.E.2d 921 (1977). We find that the trial court abused its discretion in this case and reverse.

The record in this case is completely devoid of evidence that the father is no longer able or suited to retain custody of the children. In fact, the court states in its order that the father is "responsible and caring" and that there is "no significant failure or culpability on his part in so far as the care of the children are concerned, [but that] there is a closer identity with the mother on an intimate, emotional level." Nor is there any evidence that conditions surrounding the children have so changed that modifying the custody award would promote the children's welfare. The only change in the conditions surrounding the children is that the father remarried in 1993 and moved out of state. Relocating and remarrying are not in and of themselves sufficient changes in conditions to authorize a change in custody. See Bisno, supra at 329, 232 S.E.2d 921; Stout v. Pate, 209 Ga. 786, 787(1), 75 S.E.2d 748 (1953); compare Fortson v. Fortson, 152 Ga.App. 326, 327-328(4), 262 S.E.2d 599 (1979).

Furthermore, there is no evidence in the record that the change is for the worse. The trial court states in its...

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19 cases
  • Mahan v. McRae, A99A0829.
    • United States
    • United States Court of Appeals (Georgia)
    • November 24, 1999
    ...715, 716, 409 S.E.2d 275 (1991). An award of custody vests in that parent the prima facie right of continued custody. Ormandy v. Odom, 217 Ga.App. 780-781(1), 459 S.E.2d 439 (1995); Hill v. Rivers, 200 Ga. 354, 357, 37 S.E.2d 386 (1946). "This judgment, however, is not conclusive, except as......
  • Scott v. Scott, S02A1909.
    • United States
    • Supreme Court of Georgia
    • March 27, 2003
    ...a child but they do not automatically warrant a change in custody. Mercer, supra, 210 Ga. at 548(3), 81 S.E.2d 458; Ormandy v. Odom, 217 Ga.App. 780, 781, 459 S.E.2d 439 (1995). There are situations, such as the remarriage of a custodial parent to a loving stepparent or the relocation of re......
  • Bodne v. Bodne, S03G0275.
    • United States
    • Supreme Court of Georgia
    • November 10, 2003
    ...evidence of a substantial change in a material condition affecting the welfare of [277 Ga. 446] the children, see Ormandy v. Odom, 217 Ga.App. 780(1), 459 S.E.2d 439 (1995), where one parent is designated as the primary physical custodian and moves out of state the relocation alone cannot c......
  • Holt v. Leiter, A98A0520.
    • United States
    • United States Court of Appeals (Georgia)
    • April 30, 1998
    ...S.E.2d 484 (1974). 10. Young v. Young, 216 Ga. 521, 522, 118 S.E.2d 82 (1961). 11. OCGA § 19-9-1(a)(1) (Supp.1997). 12. Ormandy v. Odom, 217 Ga.App. 780, 781(1), 459 S.E.2d 439 13. Blackburn v. Blackburn, 168 Ga.App. 66, 71(1), 308 S.E.2d 193 (1983); Haralson, supra, 237 Ga. at 258, 227 S.E......
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