Hubbard v. Free

Sognier, Judge. Appellant by petition seeks to regain custody of his child, whose aunt and uncle were awarded permanent custody when appellant was earlier (April 11, 1979) divorced from his wife. The trial court confined the issue on appellant’s petition to that of "change of condition” and refused to take into consideration that there had been no finding of appellant’s unfitness in the earlier action, and no formal termination of his parental rights. After a hearing the court denied appellant’s petition and confirmed appellees’ custody. Appellant claims error in the court’s ruling limiting the issue, and in its failure to award custody to appellant. The judgment of April 11, 1979 was not appealed and is thus conclusive on all parties. At the time of this petition appellees had custody of the child and the only question to be determined is that of "change of condition.” Higbee v. Tuck, 242 Ga. 376 (249 SE2d 62) (1978). There being reasonable evidence in the record to support the court’s finding of "no change of condition,” the court’s decision is affirmed. Robinson v. Ashmore, 232 Ga. 498, 500 (207 SE2d 484) (1974). Judgment affirmed. Deen, C. J, and Birdsong, J., concur.