Rhoden v. Dearman , 234 Ga. 229 ( 1975 )

234 Ga. 229 (1975) 214 S.E.2d 919

RHODEN
v.
DEARMAN.

29713.

Supreme Court of Georgia.

Submitted March 4, 1975. Decided April 22, 1975.

Fortson, Bentley & Griffin, Edwin Fortson, for appellant.

Grady C. Pittard, Jr., for appellee.

HALL, Justice.

This is a child custody case. The parties were divorced in 1969 and the custody of the couple's two minor children was awarded to the mother in the Florida decree. In 1973 the father filed this suit for a change in the custody and appeals from a judgment for the mother.

"Whether there are changed conditions affecting the welfare of a child occurring after the rendition of a former final custody judgment which will warrant the issuance of a new judgment by a habeas corpus court changing custody or visitation rights is essentially a fact question in each individual case which must be decided by the habeas corpus court. And if there is reasonable evidence in the record to support the decision made by the habeas corpus court in changing or in refusing to change custody or visitation rights, then the decision of that court must prevail as a final judgment, and it will be affirmed on appeal." Long v. Long, 233 Ga. 248 (210 SE2d 769); Robinson v. Ashmore, 232 Ga. 498 (207 SE2d 484).

The judgment of the trial judge states that he had no discretion in ruling on this question. We disagree. The judgment is reversed and remanded to the trial court with direction that he exercise a legal discretion in ruling whether or not there are changed conditions affecting the welfare of the child occurring after the rendition of the former final custody judgment.

Judgment reversed and remanded with direction. All the Justices concur.