Burger v. Krueger., 224 Ga. App. 179, 480 S.E.2d 230 (1996)
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Lee Sexton & Associates, Robert L. Ferguson, for appellant.
Andrew Burger and Rachel Sue Krueger were divorced in July 1994. In the final decree, Burger was awarded primary physical custody of the parties' minor child. In 1995, Krueger filed for modification of child custody and support. Finding that there had been a material change in the circumstances of the parties which materially affected the welfare of the minor child, the trial court changed primary physical custody of the child from Burger to Krueger. Burger appeals the sufficiency of the evidence supporting the trial court's decision.
"In determining whether a material change of condition has occurred, the trial court is vested with a discretion which will not be controlled by this court absent abuse. This court will affirm the trial court's decision if there is any reasonable evidence to support it." (Citation and punctuation omitted.) Hayes v. Hayes,
The trial court did make findings of fact in an addendum to its order changing custody, but this addendum cannot be considered as a substitute for a trial transcript because it was not prepared in accordance with OCGA
Johnson v. Johnson,
The court found that Burger, the custodial parent, began seeing a married woman after the parties were divorced. This woman, a neighbor, would sneak into Burger's home in the middle of the night while the child was present in the home. The woman was later divorced, and has since moved in with Burger and the child. The court did not abuse its discretion in changing custody on this ground, as changes of custody have been upheld where a parent cohabits another individual without benefit of marriage while the child is living with the parent. See Dixon v. Dixon,
The trial court also found that when the parties divorced and Burger was awarded custody of the child, Burger's mother was living with him, assisting him with care of the child. Since that time, Burger has been evicted from his apartment for non-payment of rent, and his mother no longer lives with him to assist in child care. The trial court correctly found that these facts constitute a material change in the circumstances of the parties which materially affect the welfare of the minor child.
Finally, the trial court cited several examples of the breakdown in the parties' abilities to confer on the best interests of the child. Although she has joint legal custody of the child, Burger removed Krueger's name from the list of approved persons who could pick child up from day care, and substituted his girl friend's name in Krueger's place. Burger changed the child's pediatrician without informing Krueger, screamed obscenities at her in the day care center parking lot in the presence of the child, and failed to keep his home in the condition recommended by the child's pediatrician for the child's allergic condition.
Having reviewed all of the trial court's findings of fact, no abuse of discretion occurred in changing custody from Burger to Krueger. In this case, as in any appeal of a change of custody decision, this Court is bound by the abuse of discretion standard, which specifically and intentionally vests discretion solely in the trial court and not in the appellate court. There can be no "retrial" of the case on appeal, as "[e]xperience has taught that the trial courts of this state are in a far better position to rule wisely in these matters with the parties and child before the court than we can do on appeal with only a written record before us." Fowler v. Fowler,
Cowen & Cowen, Linda S. Cowen, Martin L. Cowen III, for appellee.
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