Simpson v. Moon

238 Ga. 152 (1977)

231 S.E.2d 754

SIMPSON v. MOON.

31698.

Supreme Court of Georgia.

Submitted November 22, 1976.

Decided January 5, 1977.

Frederick J. Kraus, for appellant.

JORDAN, Justice.

The appellant brought an action against the appellee, his former wife, to obtain the legal custody of their minor child, custody having been awarded to the appellee in a divorce action between the parties. The trial judge granted the change of custody to the appellant, but sought to retain jurisdiction of the custody of the child in the following language: "The above order shall remain in full force and effect for as long as the child's physical and emotional environment remains stabilized by the custodial parent, with the court reserving the right to *153 reconsider this order in the instant case upon any deterriation [deterioration?] of such conditions, wherein the court may again change custody after a hearing into the stability and suitability of the environment of the child, or until such time as the child shall reach the age of 18 years."

The appellant asserts in his enumeration of error that the quoted portion of the judgment is void.

"A judgment fixing the custody of a minor child of divorced parents is a final one on the facts then existing, and any attempt by the trial judge to retain jurisdiction of the child is a nullity." Perry v. Perry, 212 Ga. 668 (1) (95 SE2d 2) (1956); Hanson v. Stegall, 208 Ga. 403 (1) (67 SE2d 109) (1951); Evans v. Allen, 212 Ga. 193 (1) (91 SE2d 518) (1956); Martin v. Hendon, 224 Ga. 221 (1) (160 SE2d 893) (1968); Bragg v. Bragg, 224 Ga. 733 (1) (164 SE2d 560) (1968); Taylor v. Taylor, 231 Ga. 742, 743 (1) (204 SE2d 129) (1974).

The attempt by the trial judge in the present case by the language hereinbefore quoted to retain jurisdiction of the custody of the minor child is a nullity, and it is ordered that this portion of the judgment be stricken. The void portion of the judgment did not prevent it from being a final one subject to direct review.

Judgment affirmed in part and reversed in part. All the Justices concur.