Petty v. Petty

Nichols, Justice.

The main appeal in this case is from a judgment refusing to modify a prior custody award which placed custody of a minor child in the divorced father with certain visitation privileges to the wife. The cross appeal is from a judgment rendered after the notice of appeal (the main appeal) was filed which had the effect of continuing a hearing in a contempt proceeding filed subsequent to the judgment appealed from in the main appeal upon the ground that the filing of the notice of appeal in the main appeal acted as a supersedeas.

After the appeal and cross appeal were docketed in this court, the appellant filed a motion to remand the main case to the superior court with direction to order filed an agreement between the parties. Counsel for the appellee in the main appeal agrees to such disposition of the main appeal. Held:

1. Under decisions exemplified by Hales v. Worthy, 43 Ga. 178; Barnett v. Moss, 98 Ga. App. 581 (106 SE2d 60); Dougherty County School System v. Grossman, 113 Ga. App. 825 (149 SE2d 920), the judgment of the trial court is reversed and the case remanded with direction that the agreement be filed in order to permit the agreed disposition of the case.

Argued April 14, 1971 Decided April 22, 1971. John Calvin Hunter, for appellant. J. Ralph McClelland, Jr., for appellee.

(a) Unlike the above cases, such agreement must be approved by the trial court after a hearing since it involves the change of custody of a child as between divorced parents. Compare Danner v. Robertson, 221 Ga. 516 (145 SE2d 554).

2. Case No. 26450, if deemed a cross appeal, must be dismissed as not being filed within 15 days of the notice of appeal in case No. 26426 (Code Ann. §6-803), and if deemed a main appeal, must be dismissed since the judgment continuing the hearing in the matter of the father’s alleged contempt was not such a judgment as to authorize an appeal without a certification authorizing an immediate review (Code Ann. §6-701), and no such certificate appears in the present case.

Judgment reversed in case No. 26426. Appeal dismissed in Case No. 26450.

All the Justices concur.