Opinion
32578.
ARGUED SEPTEMBER 13, 1977.
DECIDED OCTOBER 24, 1977.
Modification of custody. Gwinnett Superior Court. Before Judge Pittard.
Glyndon C. Pruitt, Glen A. Garrett, for appellant.
G. Gibson Dean, II, for appellee.
This is a change of child custody case tried before the judge as provided by law. Code § 30-127.
Appellant seeks to have us award custody of the children to appellant (a rehearing before the same trial judge undoubtedly would not result in appellant obtaining custody). We have not seen the father, the mother, or the children. Therefore we are not in position to grant the relief sought.
Because of our inability to decide who should have custody of children, we apply the rule announced in the now celebrated case of Robinson v. Ashmore, 232 Ga. 498, 500 ( 207 S.E.2d 484) (1974): If there is "reasonable evidence" in the record to support the decision of the trial judge, that decision will be affirmed on appeal. The "reasonable evidence" rule is applicable to orders changing custody. Robinson, supra. Orders denying change of custody which are supported by reasonable evidence will of course also be affirmed. Crumbley v. Stewart, 238 Ga. 169 ( 231 S.E.2d 772) (1977).
The "reasonable evidence" rule applicable in change of child custody cases is applicable even where the divorced custodial parent is charged with having sexual relations. If the trial judge finds from the evidence that the welfare of children is affected and changes their custody, that decision will be affirmed on appeal where there is reasonable evidence to support it. Godfrey v. Godfrey, 239 Ga. 707 (1977). See also Simpson v. Simpson, 233 Ga. 17 ( 209 S.E.2d 611) (1974). However, if the trial judge finds from the evidence that the welfare of the children is not affected and refuses to change their custody, that decision also will be affirmed on appeal. Culbreth v. Culbreth, 236 Ga. 583 ( 224 S.E.2d 417) (1976); see also Durden v. Durden, 224 Ga. 417 (4) ( 162 S.E.2d 385) (1968). Compare Buck v. Buck, 238 Ga. 540 ( 233 S.E.2d 792) (1977).
Judgment affirmed. All the Justices concur, except Hall, J., who concurs in the judgment only.