Smith v. Smith, 25135
| Decision Date | 24 April 1969 |
| Docket Number | No. 25135,25135 |
| Citation | 167 S.E.2d 597,225 Ga. 241 |
| Parties | Ashley Barrell SMITH v. Joyce Nadine SMITH. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The judgment specifying visitation days and hours was a modification of the original judgment awarding 'reasonable visitation rights,' and therefore was not authorized where no change of circumstances affecting the interest and welfare of the children was shown.
2. The motion to dismiss the appeal is without merit.
Miles B. Sams, East Point, for appellant.
McCord, Cooper & Voyles, Robert B. McCord, Jr., Hapeville, for appellee.
This appeal is from a judgment involving visitation rights of a mother as to her two minor children, rendered in a proceeding brought by the mother, Joyce Nadine Smith, against the father, Ashley Berrell Smith.
Her petition, filed in the Superior Court of Fulton County on November 12, 1968, sought clarification of a judgment entered in that court on May 10, 1967, which awarded custody of the children to the father 'with reasonable rights of visitation' to the mother. The petition averred that since the original judgment the father and his parents had, in stated particulars, done everything possible to make the visitation difficult and to frustrate her desire to have regular and reasonable contact with the children. She alleged that her 'reasonable visitations rights' should include visits at specified times, and prayed that the 'court redefine and clarify what should in this case constitute 'reasonable visitation rights' for (her) benefit * * * and modify or amend the * * * (judgment) to this extent.'
A hearing was had and the evidence, insofar as necessary here, was that which follows.
The mother testified that she was now living with her aunt and uncle who were nature persons, had excellent reputations and had a nice home; that she wanted a chance to establish herself with her children; that the visitation rights she had been permitted by the father to exercise had not been satisfactory in that she had not bene allowed to be with her children except in the presence of the grandparents or the father or both; that this had been a distracting and harmful influence upon the children; that she had to limit her visits to the home of the father and his parents and to times when it was convenient with him, which varied from time to time; that she was employed and had little opportunity to spend much time with her children except on weekends; and that she would like her visitation rights spelled out by the court in order that she could have her children with her exclusively for some periods over the weekend.
The father testified that he objected to visitation by the mother outside of the home because he did not believe it conducive to the welfare of the children, and that he was fearful that they might come under questionable influence.
The court entered judgment which in material part provided as follows: that the mother could visit the children only where the father resides on Tuesday night of each week from 6 p.m. to 9 p.m.; that on every other Saturday from 9 a.m. until 6 p.m. she could visit with the children and take them with her to any location in this State, provided she returned them by 6 p.m. on the date obtained and declared to the father or one of the paternal grandparents where she intended to take them; that while exercising such Saturday visitation rights she shall not carry the children to any place or in the presence of persons where their physical, moral, mental, social, or spiritual life shall be exposed to wrong conduct or uncleanliness. The judgment recited 'that it is not the intention of this court in any manner to change or alter the provisions of the original judgment.'
The mother, who is the appellee here, contends that this judgment merely clarified a portion of the original decree, making no material change in it but construing the 'reasonable visitation rights' embodied in it, and therefore that it was unnecessary to make any showing of a change of circumstances affecting the interest and welfare of the children.
The father, the appellant here, takes the position that the original judgment became final insofar as custody is concerned and can be modified only by evidence establishing such a change of circumstances, that the evidence referred to above did not show this, and that the judgment now attacked amounted to an unauthorized modification of the original judgment.
We regard the appellant's position as well taken.
1. There is no question but what the judgment complained of modified the original decree...
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