Summary
giving retroactive application to OCGA § 19–7–3 and holding that no person has a vested right in the custody of a minor child, therefore “ reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review”
Summary of this case from Esasky v. FordOpinion
60698, 60699.
SUBMITTED SEPTEMBER 5, 1980.
DECIDED OCTOBER 8, 1980.
Adoption; visitation rights. Cobb Superior Court. Before Judge Bullard.
George W. Darden, Toby B. Prodgers, for appellant.
Judith F. Bagby, for appellee.
The appellant appeals two orders denying him visitation rights to his grandson. The child's parents were divorced in October 1978. Custody was awarded to the mother, the appellee; and the father, the appellant's son, received visitation privileges. Appellee remarried; and her new husband petitioned to adopt the child in September 1979, the natural father having died the previous month. The adoption was granted in November 1979; and within 30 days appellant filed a motion seeking to set aside or, in the alternative, to be granted visitation privileges. Appellant had previously sought visitation rights in a separate action commenced in October 1979, and the two cases were consolidated for argument. The trial court denied the motion to set aside or modify the adoption proceeding based on lack of standing and dismissed the other suit because no question concerning the custody or guardianship of the minor child was before the court. Code Ann. § 74-112 (Ga. L. 1976, p. 247). Held:
Code Ann. § 74-112, supra, as it existed at the time of the judgments complained of, provided that "whenever any court in this state shall have before it any question concerning the custody of or guardianship of any minor child, the court may, in its discretion, grant reasonable visitation rights to the maternal and paternal grandparents of the child." Thus, the trial court was correct in ruling that standing was lacking in the absence of any issue as to custody. See Spitz v. Holland, 243 Ga. 9 ( 252 S.E.2d 406) (1979); Dyer v. Allen, 238 Ga. 516 ( 233 S.E.2d 772) (1977); Rhodes v. Peacock, 142 Ga. App. 328 ( 235 S.E.2d 762) (1977). The trial court was also correct in ruling that the appellant lacked standing to seek visitation in an adoption proceeding where the only living parent, the mother, had consented to the adoption. See Lockey v. Bennett, 244 Ga. 339 ( 260 S.E.2d 56) (1979). Mead v. Owens, 149 Ga. App. 303 ( 254 S.E.2d 431) (1979); Hester v. Mathis, 147 Ga. App. 257 ( 248 S.E.2d 538) (1978).
Code Ann. § 74-112, referred to as "The Grandparents' Bill of Rights," was amended 12 days after the trial court entered its orders in this case. The statute now provides that the "parent of a minor child's parent who has died shall have the right to file an original pleading, but not more than once during any calendar year, to obtain visitation rights to said minor child." (Ga. L. 1980, pp. 936, 937). We conclude that the amendment applies retroactively. "[A] reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right under the the prior law." City of Valdosta v. Singleton, 197 Ga. 194, 208 ( 28 S.E.2d 759) (1944); Osteen v. Osteen, 244 Ga. 445 ( 260 S.E.2d 321) (1979). In giving retroactive application of the 1976 version of this same statute to a 1975 award, the Georgia Supreme Court held that "[n]o person has a vested right in the custody of a minor child." George v. Sizemore, 238 Ga. 525, 528 ( 233 S.E.2d 779) (1977); accord Adams v. Adams, 219 Ga. 633 ( 135 S.E.2d 428) (1964).
Case No. 60698, appellant's appeal from the denial of his motion to intervene in the adoption proceeding, is not affected by the statutory change and is therefore affirmed.
As to case No. 60699, the judgment is reversed and the case remanded to the trial court to determine appellant's rights to visitation.
Judgment affirmed in Case No. 60698. Judgment reversed and remanded in Case No. 60699. McMurray, P. J., and Smith, J., concur.