Tenney v. Tenney, A98A0834.

• Decision Date: 05 November 1998
• Docket Number: No. A98A0834.,A98A0834.
• Citation: 508 S.E.2d 487,235 Ga. App. 128
• Parties: TENNEY v. TENNEY.
• Court: Georgia Court of Appeals

508 S.E.2d 487

235 Ga. App. 128

TENNEY v. TENNEY.

No. A98A0834.

Court of Appeals of Georgia.

November 5, 1998.

Amelia G. Pray, Austell, for appellant.

Jackel, Rainey, Marsh & Busch, Michael L. Marsh, Jessica L. Handley, Marietta, for appellee.

POPE, Presiding Judge.

Brian Tenney and Kerry Tenney divorced in 1996. The court which granted the divorce approved of the Tenneys' separation agreement and made it part of the final judgment and decree. The agreement provides that the Tenneys have joint custody of their daughter and son, but that the children's primary residence is with Brian Tenney and that he has the final say in decisions relating to the children. The agreement further provides that Brian Tenney has the right to move himself and the children to a new residence, so long as he gives Kerry Tenney 90 days notice of the move.

In 1997, Brian Tenney notified Kerry Tenney that he intended to move to Florida, with the children, in order to take a new job. Kerry Tenney filed a complaint for change of custody based on the intended move. The trial court held a change of custody hearing, at which Brian and Kerry Tenney were the only witnesses. At the time of the hearing, Brian Tenney had not yet moved and no longer had a job offer in Florida. In addition to the Tenneys' testimony, the court considered documentary evidence, including the notes of a school counselor indicating that the Tenneys' daughter was worried about the possible move to Florida.

Three months after the hearing, the court issued an order making Kerry Tenney the children's primary physical custodian if Brian Tenney moved to Florida. In the alternative, the court ruled that Brian Tenney would remain as the primary custodial parent if he did not move. But if he later wants to move with the children, the court ruled that he must provide Kerry Tenney a list of five psychologists or psychiatrists, from which she may choose one to evaluate the effects of a move on the children, and the court would then consider the psychological evaluation before ruling on whether to change custody. We granted Brian Tenney's application for discretionary review of the court's order.

1. Brian Tenney asserts that the court erred in changing the original custody decree by making Kerry Tenney the primary physical custodian of the children if Brian Tenney has already moved to Florida. We agree that this portion of the court's order is erroneous.

"In a contest between the parents, the award of custody by a divorce court vests the custodial parent with a prima facie right. [Cit.] Ordinarily, the trial court should favor the parent having such a right. [Cit.] 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. [Cit.] 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. [Cits.] Although trial courts have wide discretion in change of custody proceedings, there are limits to that discretion. [Cit.]" (Punctuation omitted.) Ormandy v. Odom, 217 Ga.App. 780, 781(1), 459 S.E.2d 439 (1995).

In the instant case, the court went beyond the limits of its discretion. Based on the original custody decree, the trial court was required to favor Brian Tenney's prima facie right to be the primary custodial parent. Contrary to the trial court's judgment, Kerry Tenney has proved no grounds for disregarding that right. The record is devoid of any evidence that Brian Tenney is no longer able or suited to retain custody of the children; there is no evidence of a change for the worse in the conditions of the environment in his home. On the contrary, the trial court expressly held that if he has not moved, then Brian Tenney should remain as the children's primary physical custodian.

There also is no evidence that conditions surrounding the children have so changed that modifying the original decree to make Kerry Tenney the primary physical custodian would promote the children's welfare. The only changes in conditions surrounding the children upon which the court based its decision to modify the original custody order are that Brian Tenney might have moved to Florida and that the children may be worried about such a move. Moving, however, is not necessarily in and of itself a sufficient change in condition to authorize a change in custody. Ormandy v. Odom, 217 Ga.App. at 781(1), 459 S.E.2d 439. "While adverse emotional problems caused a child by a sudden, unannounced move is a factor for consideration, relocation standing alone cannot support a finding of change of condition and a resulting change of custody." (Punctuation omitted.) In the Interest of R.R., 222 Ga.App. 301, 305(3), 474 S.E.2d 12 (1996). Because the only grounds for the portion of trial court's order making Kerry Tenney the primary physical custodian are that Brian Tenney may have already moved to Florida and that the children may be worried about the move, that portion of the order is contrary to the law and must be reversed.

2. Brian Tenney also challenges the trial court's order that if he has not moved, but later wants to move, he must first provide a list of psychologists or psychiatrists who can evaluate the effects of a move on the children and then report the evaluation and any recommendations to the court. The ruling presents a procedural problem. The complaint for change of custody has been ruled on and judgment given. The ruling has been appealed...