Todd v. Todd

Summary

The Supreme Court of Georgia held that an appeal from a final divorce decree involving child custody must proceed by discretionary application because the underlying action is a divorce case, not a separate child custody case. The court further held that the trial court improperly changed physical custody based on a categorical policy concerning a parent's cohabitation without evaluating the child's best interests. The judgment was reversed and remanded for reconsideration consistent with the opinion.

Holdings

1. A final divorce decree that includes a child-custody determination remains a divorce case for appellate-procedure purposes. Because the underlying subject matter is a divorce action covered by OCGA § 5-6-35(a)(2), an application for discretionary appeal is required, and OCGA § 5-6-34(a)(11) does not authorize a direct appeal merely because custody is one issue in the decree.
2. Although a trial court may revise a custody judgment during the same term, it may not change custody based solely on a parent's conduct or a rigid policy without determining the child's best interests. The trial court's custody modification was an erroneous exercise of its inherent power because it was not supported by a meritorious reason and did not evaluate the child's welfare.

Questions Presented

1. Whether a final divorce decree that includes a child-custody determination is appealable by direct appeal under OCGA § 5-6-34(a)(11), or instead requires an application for discretionary appeal under OCGA § 5-6-35(a)(2).
2. Whether the trial court properly exercised its inherent power to revise the custody award during the same term when it changed custody based on Mother's alleged cohabitation and misrepresentation without determining the child's best interests.

Disposition

reversed_and_remanded