Robinson v. Ashmore

Grice, Chief Justice,

concurring specially.

While I concur in the judgment reversing the grant of the appellees’ motion for summary judgment, I disagree with much that is said in the majority opinion, and deem it necessary to state the basis for my disagreement.

1. As to the summary judgment, the appellees, in my view, have not laid to rest all factual questions which may be pertinent to a determination of the question of custody.

Although I do not agree that all of the grounds relied upon by the appellees show changed conditions, as required by law, the following at least raise an issue so as to preclude summary judgment.

The deposition of the mother, insofar as necessary here, recited that whenever she and the child visited, "we had a terrible, awful, heartbreaking scene .. that this was having a very traumatic effect upon the child; and that the child wanted to live with her and complained because she did not live with her mother and father as did her friends.

It was also recited that after her remarriage the mother had not been allowed to see the child because of the continuing refusal on the part of the grandparents to let her exercise her visitation rights under the custody arrangement.

The cause and the effect of this emotional condition of the child and of the deprivation of visitation rights must be resolved by the trior of the facts, and is not so *504 resolved by summary judgment in the present posture.

Therefore the grandparents were not entitled to a judgment as a matter of law, and for this reason I agree that the judgment should be reversed.

2. However, I strongly disagree with the majority as to a "rule” that would permit the unlimited and unrestricted application to courts for change of custody and the unbridled authority to change custody upon the basis of "reasonable evidence” (whatever that means) appealing to the particular judge to whom the matter is presented.

This amounts to no rule at all. It is too vague and indefinite for application.

Any possible merit in it is clearly outweighed by a sound and abiding principle of law that provides a basis of stability for the child and also for the custodian.

Somewhere between this case-to-case rule proposed in every case, on the one hand, and the rigid application of the doctrine of "res judicata,” on the other, lies a broad and sound principle of law by which justice can be administered by capable judges and prior judicial decrees made secure by previous decisions of this court.

This court has time and again expounded the principle. It has been applied, and must be applied in the future, to divergent factual situations for which no hard and fast rule can be formulated.

"The award of custody of a child of the parties in a divorce decree is conclusive unless there have been subsequently to the decree new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child. [Citations.]” Young v. Young, 216 Ga. 521, 522 ( 118 SE2d 82 ).

Also, "Though the trial judge is given a discretion, he is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child.” Ibid.

Thus, when a court of competent jurisdiction has heard the evidence and has pronounced judgment in a formal decree, the rights and duties of the child, the custodian, the parents, and any other interested party are fixed. And they remain fixed and certain unless and *505 until some change in circumstances subsequent thereto so clearly affects the welfare of the child that a change in custody is required. Any such change is to be made only if it meets the standards fixed and the general principles established in prior decisions of this court constituting valid grounds for a change. To act otherwise would produce, not clarity, but confusion.

This leaves ample room, within the framework of the law, to protect and preserve the rights of the child and others properly concerned.

To rigidly apply to every case the doctrine of res judicata would unduly restrict the courts of the continual oversight of the welfare of the child.

On the other hand, to remove established standards and to fail to give due recognition to prior judicial determinations would multiply litigation, leave trial judges without guidance and would hamper this court in its duty to provide certainty and continuity to the law.

These prior decisions determine whether evidence of specific events or situations are sufficient grounds to change custody in the light of controlling principles of law heretofore correctly followed by this court. A comprehensive collection of the cases on this subject appears in "Georgia Law of Children,” by Stubbs, pp. 250-260, § 120. See also West, Georgia Digest, Divorce, § 303 (2).

Approximately 24 years ago this court said in Ehlers v. Ehlers, 206 Ga. 297 ( 57 SE2d 83 ): "There has been no legal definition of the new or changed condition necessary to warrant a change of custody,...” (Emphasis supplied.)

Today no rule can be fashioned that will cover all of the specific factual situations that continually occur in change of custody cases. But we do have the principle stated in the Young case, 216 Ga. 521 , supra, and the decisions that have applied it to factual situations so as to establish standards for valid grounds of change of custody.

This court should not propound a variable, undetermined rule that will allow random application for and change of custody. There must be some firm and established principles of general law to serve as a guide *506 and to preserve a predictable justice and an orderly functioning of our judicial system.

The action of the majority in this regard, although well intended, is in my view a mistake. It is my hope that upon further consideration this will become apparent and corrective action will be taken.