Somers v. Beasley

Undercofler, Justice. Mrs. Wynell Beasley Somers filed suit in the Superior Court of Jones County against Mrs. Eva Mae Beasley and James B. Beasley seeking to obtain custody of her six minor children. Her petition alleged that a material change of conditions affecting the welfare of the children had occurred since they were awarded to their grandparents, Emmett C. and Eva Mae Beasley, on April 13, 1965; that Emmett C. Beasley died on May 10, 1967; that Mrs. Beasley is now 57 years old and is physically and financially unable to care for said children; that the children are no longer residing with Mrs. Beasley but are living with their father James B. Beasley; and that their father is not a fit and proper person to have their custody. The petitioner prayed that custody be awarded to her. Held: To authorize a change in custody, it must be shown that there has been a change in conditions substantially affecting the interest and welfare of the children. Danner v. Robertson, 221 Ga. 516 (145 SE2d 554); Elders v. Elders, 206 Ga. 297 (57 SE2d 83); Fortson v. Fortson, 197 Ga. 699 (30 SE2d 165). “ ‘In determining whether or not there has been such a change, the trial judge is vested with a discretion which will not be controlled by this court unless it is abused.’ Furthermore, ‘when the trial judge is by law made the trior of an issue of fact, this court will not interfere with his' finding where there is any evidence to support it.’ ” Mallette v. Mallette, 220 Ga. [128] 401, 404 (139 SE2d 322); Wrede v. Beuke, 221 Ga. 778 (147 SE2d 324). The evidence in this case was sufficient to support the finding of the trial judge that the children were happy and well cared for in the home of their grandmother, that the death of their grandfather had not created a material change of circumstances affecting their welfare, that the health of their grandmother was the same as on the previous award of custody to her, and that they only visited in the home of their father on occasions. The trial judge did not abuse his discretion in awarding custody of the children to their grandmother. Submitted February 12, 1968 Decided March 7, 1968. Milton F. Gardner, for appellant. George L. Jackson, for appellees. Judgment affirmed. All the Justices concur.