Sampson v. Sampson

• Decision Date: 01 November 1977
• Docket Number: No. 32843,32843
• Citation: 239 S.E.2d 519,240 Ga. 118
• Court: Georgia Supreme Court
• Parties: Brenda SAMPSON v. King SAMPSON.

Page 519

239 S.E.2d 519

240 Ga. 118

Brenda SAMPSON v. King SAMPSON.

No. 32843.

Supreme Court of Georgia.

Nov. 1, 1977.

Arthur Leed, Decatur, for appellant.

JORDAN, Justice.

This case presents the question of whether the visitation rights of the parties to a final divorce may be modified in a contempt proceeding.

Plaintiff-appellant brought a contempt action against her former husband for his failure to pay child support pursuant to their final divorce decree. The court's final order found the defendant in contempt for the non-payment of child support and harassment of the plaintiff. The order also modified the visitation rights of the parties by allowing the defendant to pick up the child at the home of the plaintiff rather than the plaintiff delivering the child to the residence of defendant's mother.

Appellant contends that a final decree of divorce may not be modified as to visitation rights at a subsequently filed contempt action, relying on Henderson v. Henderson, 231 Ga. 577, 203 S.E.2d 183, 184 (1974) which stated that "the terms of a final divorce decree cannot be modified in subsequently filed contempt proceedings because any change in custody or visitation must be accomplished through new proceedings based upon evidence showing a change in circumstances affecting the interest and welfare of the minor children."

This language in Henderson was quoted in the recent case of Smith v. Smith, 239 Ga. 202, 236 S.E.2d 364 (1977), also cited by appellant. Since the Henderson decision the Georgia Legislature has passed an addition to Code § 30-127 which provides that: "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 affecting 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 proceedings based upon a showing of a change in any material conditions or circumstances of a party or the minor." Ga.L.1976, p. 1050.

It seems clear that the holding in Henderson is abrogated by this legislative...