Opinion
A90A1272.
DECIDED NOVEMBER 16, 1990.
Child custody. Douglas Superior Court. Before Judge Noland.
Hartley, Rowe Fowler, Jeffrey P. Richards, for appellant.
Edwards Krontz, Robert B. Edwards, Kenneth W. Krontz, for appellee.
Appellant and appellee were formerly wife and husband. Upon their divorce appellant received custody of three minor children, issue of the marriage. On September 6, 1989, appellee filed this action seeking an order changing custody of the parties' two minor children (the third child has reached the age of majority).
Following a hearing the superior court entered its findings as follows: "1. Since the Final Judgment and Decree of Divorce which awarded custody of the minor children of the parties to the [appellant], there have been material changes in the conditions and circumstances substantially affecting the interest and welfare of the minor children. 2. There has been substantial harm done to the six year old girl and the thirteen year old boy. 3. By her own admission Defendant has consistently violated Official Code of Georgia 16-6-18 and 16-6-19 in the presence of the said minor children." Based on these findings the superior court ordered custody of the two minor children changed to appellee. Appellant's application for discretionary appeal was granted, and she subsequently filed this appeal. Held:
OCGA §§ 16-6-18 and 16-6-19 prohibit the offenses of fornication and adultery. Sexual intercourse is an element of each of these crimes. Therefore, the superior court's third finding of fact states that appellant had sexual intercourse in the presence of her two minor children. Appellant correctly argues that there is no evidence authorizing this finding. "`"If the court's judgment is based upon a stated fact for which there is no evidence, it should be reversed." (Cit.)' Lamas v. Baldwin, 140 Ga. App. 37, 39 (1) ( 230 S.E.2d 13) (1976). `We remand the case to the trial court with direction that it correct the finding(s) to conform to the evidence and then make a judgment with the corrected finding(s) taken into consideration. (Cit.)' Chatham v. World Arts c. Center, 147 Ga. App. 421, 422-423 ( 249 S.E.2d 139) (1978)." Palm Restaurant of Ga. v. Prakas, 186 Ga. App. 223, 227 (8) ( 366 S.E.2d 826).
Judgment reversed and case remanded with direction. Carley, C. J., and Sognier, J., concur.