Opinion
17928.
ARGUED JULY 14, 1952.
DECIDED SEPTEMBER 2, 1952.
Custody of child. Before Judge Rees. Sumter Superior Court. May 2, 1952.
R. L. LeSueur, for plaintiff in error.
J. Frank Myers and H. B. Williams, contra.
The evidence failed to show that there had been any substantial change of conditions and circumstances since prior orders fixing custody of the minor child, and accordingly the trial judge erred in modifying such orders.
No. 17928. ARGUED JULY 14, 1952 — DECIDED SEPTEMBER 2, 1952.
Mrs. LaForrest Southerland Pope filed in Sumter Superior Court, against D. H. Pope, a petition seeking to modify former orders awarding the custody of their minor daughter, Joyce Elizabeth Pope.
On December 16, 1949, the court by a consent order awarded custody of the child to her mother, but allowed the father to visit the child at convenient times, and after the child reached the age of two years, then the father was to have the right to have her visit with him. On December 22, 1950, the above order was modified by allowing the father "to visit said minor child at the home of Mrs. Southerland . . on Saturdays between 5:30 and 7:30 p. m. of each week, and on Sundays of each week between the hours of 2 and 5 o'clock p. m." On February 21, 1952, the orders were further modified by allowing the father to have the child visit with him on Saturdays between 2:30 and 7:30 p. m. of each week, and to visit with him for two weeks each July.
The present petition, which was filed on April 18, 1952, alleged: The child is suffering from a serious nervous disorder and other physical ailments, which makes it essential that she not be emotionally or physically upset. She is in great fear of her father. She is happy in her present environment but the visitation on the part of the father frightens and upsets her, and the mother fears that a continuation of the visitations will have a permanent and damaging effect on the child's health.
On the hearing Mrs. Rena Southerland, the maternal grandmother, testified in part: Joyce was born November 24, 1948. She has acute kidney trouble, and is awfully nervous. Two visits have been made under the order of February 21, 1952. On the afternoon of February 23, 1952, she cried when the defendant took her, because she lets no one other than the witness take her anywhere. On March 1 she said, "Don't let him take me." On her return she said, "I am so tired, my legs hurt me so bad," and lay down on the floor. That visit upset her. She cried most all night. Her hands and feet were swollen. She has touches of epilepsy. She had a spasm, just gritted her teeth and shook all over.
Miss Mary Forest, a great aunt of the child testified: The witness is a registered nurse. The child did not want to go with the defendant either time. The first time she cried and was awfully nervous and upset. When she returned she was extremely nervous, crying and jerky all over. Her hands and feet twitched like she was having a convulsion. They had been treating her for kidney trouble and a mild form of epilepsy. They gave her aspirin to quiet her. When she went to sleep she would cry out and scream and started running a temperature. The second time the defendant came for her it was the same thing over again. Her condition has improved a whole lot since she has not been seeing her father. She is not nearly so nervous and has gotten where she will go out without having her grandmother with her. She still has a fear her grandmother will be taken away from her. In the witness's opinion the nervous condition on the part of the child is aggravated by seeing her father.
The petitioner testified to the same effect and further that she knew under the order of February 21, 1952, she was not supposed to try to turn the child against the father.
Dr. Henry R. Fenn testified: He has been the child's physician all of her life, and she was nervous each time he saw her. The only thing the child is suffering from is kidney infection. She had influenza the last of February or the first of March, this year. She has never had epilepsy. She was a premature baby and had some weakness in her leg which gradually cleared up. The kidney ailment she had was most susceptible to chloromycetin. That is the only course of medicine the witness prescribed for that trouble, but she had it along in the winter, and she had quite a bit of penicillin. Chloromycetin along with the penicillin is usually very effective in getting rid of that infection. If the infection responds to the drugs, it is not too serious. If the child's nervous condition and the kidney ailment have improved in five or six weeks the chloromycetin and penicillin were responsible for the improvement. The witness has never known of a three and a half year old child being upset by her father visiting her, and from what he knows of the child and these two families he knows of no reason why it would not be to the best interest of the child for her father to see and visit with her occasionally.
The testimony for the father was to the effect that the child willingly went with him, enjoyed her visits in his home, where she watched television for the first time, played as a normal child, and apparently suffered no injurious reaction.
After hearing evidence the trial judge modified the previous orders so as to provide that the father should not be permitted to have the child visit with him for a period of 12 months. The father excepted to this judgment. Other facts will be stated in the opinion.
The question for decision is whether there had been such a change of conditions and circumstances since the order of February 21, 1952, fixing the custody of the minor child as to justify the trial judge in entering a revision of such order. There was no contention that the father was an unfit person to have the custody of his child during the visitation periods, but the mother contended that the child was suffering a serious nervous disorder which made it essential that she not be emotionally or physically upset.
The original consent judgment stated that, after the child reached the age of two years, then the father would have the right to have her visit with him at reasonable times. Nevertheless, for a period of approximately 18 months after the child became two years old, during which there was much litigation, the father was only permitted to have his child visit with him on the afternoons of February 23 and March 1, 1952. The uncontradicted evidence shows that on each of these occasions the child, after arriving at her father's home, enjoyed looking at television and playing with other children. It would be natural for a three and a half year old child, who had lived practically its entire life with elderly ladies, in a home where there were no men folks and where there were no children to play with, to return from such visits tired and exhausted.
The evidence was conflicting on the question of whether the child went with her father willingly, but taking the testimony of the mother's witnesses to be true, which must be done since the trial judge found in her favor, the child was afraid, prior to the order of February 21, 1952, to go anywhere unless accompanied by her 80-year-old maternal grandmother. The fears of the mother that a continuance of the visitations would have a permanent and damaging effect on the child's health were not supported by her only expert witness, who testified in effect that the kidney ailment was not serious, and that he knew of no reason why it would not be to the best interest of the child for the father to visit with her occasionally.
Furthermore, the uncontroverted evidence shows that the child had been suffering from the nervous disorder, which was the primary cause of her being emotionally or physically upset, prior to the order of February 21, 1952.
Accordingly, the evidence failed to show any substantial change of conditions and circumstances, and the trial judge erred in modifying the prior orders so as to deprive the father of seeing his child for a period of twelve months. Lockhart v. Lockhart, 173 Ga. 846 (3) ( 162 S.E. 129); Peeples v. Newman, 208 Ga. 53 (2) ( 70 S.E.2d 749); and cases cited.
Judgment reversed. All the Justices concur, except Atkinson, P.J., and Almand, J., not participating.