Opinion
74771.
DECIDED SEPTEMBER 10, 1987.
Child custody. Gwinnett Superior Court. Before Judge Henderson.
Samuel H. Harrison, G. Hughel Harrison, for appellant.
C. Alan Mullinax, for appellee.
We granted an application for discretionary appeal from a superior court to review a change of the custody of the two young sons of the parties from the mother to the father. According to the record which was subsequently sent up, the order changing custody on October 15, 1986, was not superseded as could have been done upon payment of costs. OCGA §§ 5-6-35 (h) and 5-6-46 (a). Simpson v. Simpson, 233 Ga. 17, 21 ( 209 S.E.2d 611) (1974). See also Brandon v. Brandon, 154 Ga. 661, 669 (7) ( 115 S.E. 115) (1922). Thus it appears that the boys have been with the father since then. One boy turned fourteen on February 12, 1987, and the younger brother will be fourteen on November 19, 1988.
The superior court would not have had discretion to grant or deny supersedeas, as a juvenile court dealing with the same subject matter would have authority to do pursuant to OCGA § 15-11-64. This is true even though in the latter instance the case emanated from a superior court. See Dixon v. Dixon, 183 Ga. App. 756 ( 360 S.E.2d 8) (1987).
The transcript of evidence was not included in the appeal. Consequently, we are unable to examine the evidence to ascertain the basis for the court's findings of fact, and we must assume that they are supported. Johnson v. Johnson, 242 Ga. 339 ( 249 S.E.2d 22) (1978). Among the facts found was that "[t]he children would rather live with their father than move to South Carolina [with their mother]." As to the older boy, see OCGA § 19-9-3 (a).
Based on this and a number of other equally important facts and factors which the court took into account and which need no recitation here, as they are shown in its order, the court concluded that there was "a change of condition which substantially affects the welfare of the children" and that it would be in their best interest to change custody to their father. The court expressly recognized the prerequisite of these two elements. See Evans v. Stowe, 181 Ga. App. 489, 491 (4) ( 352 S.E.2d 811) (1987); Gibson v. Pierce, 176 Ga. App. 287 ( 335 S.E.2d 658) (1985); Robinson v. Ashmore, 232 Ga. 498, 501-502 (II) ( 207 S.E.2d 484) (1974).
We cannot rule that the court failed to apply the proper test or that, based on the facts as found, the conclusions were not supported as a matter of law. See, in connection with the circumstances in this case, Parkerson v. Parkerson, 167 Ga. App. 265 ( 306 S.E.2d 97) (1983).
Judgment affirmed. McMurray, P. J., concurs. Sognier, J., concurs in the judgment only.