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Lawskills.com Georgia Caselaw
DELOACH v. WEATHERS et al.
22190.
Custody of children. Long Superior Court. Before Judge Durrence.
HEAD, Presiding Justice.
Where custody of children is sought based upon an alleged change in conditions materially affecting the welfare of the children, and no such change in conditions is proved, it is not error for the court to adhere to the former award.
On February 3, 1961, a divorce decree was entered between Ethan Trantice DeLoach and Mrs. Ella Nadine DeLoach (now Weathers), and custody of the two minor daughters (Cathy, now age ten, and Rhonda, three years and ten months) was awarded to the father. At the time of this award the father was, and had been for a number of years, a member of the armed forces.
On March 16, 1963, custody of the two children was awarded to the maternal grandparents, Mr. and Mrs. Charles G. Swindell. On April 26, 1963, the father filed a petition alleging that there had been a material change in conditions affecting the welfare of the children since the date of the last decree, and praying that custody be awarded to him. After a hearing the court entered a decree granting to the father certain rights of visitation and custody, but awarding the legal custody of the children to the maternal grandparents. The exception is to this judgment.
To show a change of conditions materially affecting the welfare of the children the father relies upon testimony by three witnesses that on two separate occasions when the witnesses saw the maternal grandfather they thought that he had been drinking, or that he had taken some amount of intoxicating beverages. A number of witnesses for the defendants testified that they had never known of the grandfather using alcoholic beverages. One of these witnesses, the county superintendent of schools, testified that the grandfather has a good reputation, that the witness had never "heard of him drinking," and that he "is an outstanding citizen." The grandfather testified that, "I occasionally take a drink, but not where the children can see me. The children have never seen me take a drink. I never take a drink in the daytime, . . . I have never been drunk, intoxicated or under the influence."
The judgment of the court awarding the legal custody of the two children to the maternal grandparents can not be construed to me-an or to imply that the trial judge entertains the view expressed by the poet Robert Burns that, "John Barleycorn was a hero bold, Of noble enterprise,"
or that the court approves the use of alcoholic beverages in any form. There is no testimony in the present case to show that the facts now relied upon by the father are in any manner different from those in the former case, or that the facts relied upon were not fully known by the court at the time custody was awarded to the grandparents on March 16, 1963, which award was made less than six weeks prior to the judgment now excepted to.
Where custody of children is sought based upon an alleged change in conditions materially affecting the welfare of the children, and no such change in condition is proved, it is not error for the court to adhere to the former award. Drake v. Drake, 187 Ga. 423, 429 (1 SE2d 573); Guinn v. Trammell, 216 Ga. 388 (116 SE2d 551); Healan v. Wright, 217 Ga. 720 (124 SE2d 640).
Judgment affirmed. All the Justices concur.
Richard Phillips, B. Daniel Dubberly, Jr., contra.
R. L. Carr, Sam Johnson, for plaintiff in error.
SUBMITTED SEPTEMBER 10, 1963 -- DECIDED OCTOBER 10, 1963.
Friday May 22 22:12 EDT


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