Todd v. Todd

234 Ga. 156 (1975)

215 S.E.2d 4

TODD v. TODD.

29756.

Supreme Court of Georgia.

Argued March 10, 1975.

Decided April 8, 1975.

William E. Shurling, III, for appellant.

Heard, Leverett & Adams, E. Freeman Leverett, James D. Hudson, for appellee.

UNDERCOFLER, Presiding Justice.

Diane Suttles Todd filed a complaint for divorce against Glenn E. Todd. A divorce was granted on the ground that the marriage was irretrievably broken. The evidence was heard by the trial court without a jury. Custody of the 2 1/2-year-old daughter was awarded to the mother for the months of June through August and to the father for the other nine moths with visitation rights in each parent during the other's period of custody. The mother appeals to this court on the issue of custody only. Held:

The mother contends that the "verdict" is contrary to the evidence, against the weight of the evidence, without evidence to support it, and did not show that the mother was unfit. The mother also contends that the court erred in giving the father primary custody of a 2 1/2-year-old daughter, in allowing hearsay evidence which necessarily influenced the decision, and in allowing the parties to a divorce case to testify to the adultery of the other party.

*157 As between the parents neither has a prima facie right of custody and the judge can award custody to either parent within his discretion. Code Ann. § 30-127 (as amended, Ga. L. 1962, pp. 713, 714). The evidence must demand a contrary verdict before we will reverse the discretion of the trial court. The evidence in this case does not demand a contrary verdict.

Although the husband testified as to the wife's adultery contrary to the public policy of this state Bartlett v. Bartlett, 228 Ga. 541 (1) (186 SE2d 754)), there was other evidence of such conduct. Under these circumstances and in view of the fact that the mother is given custody for the three months during the summer with visitation periods during the father's custody, the judgment is affirmed.

Judgment affirmed. All the Justices concur, except Ingram, J., who concurs in the judgment only.