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Richardson v. Barber12/3/1999
sue.
The evidence in the record clearly established that the trial court did not abuse its discretion. See OCGA § 19-7-1 (c) (6). Richardson was in jail for the majority of Zsa Vonn's life. From jail, he neither provided legal support nor emotional support to Zsa Vonn. The record contains ample evidence of Richardson's criminal life and his life fathering seven children by four different women. While the record contains evidence that Zsa Vonn visited Richardson in jail on occasion and that Zsa Vonn even wrote three letters to Richardson in jail, this evidence shows that contact was initiated by Zsa Vonn and others, not that Richardson sought to establish any relationship with his son. Such evidence is not sufficient to overcome the trial court's determination that Richardson was entitled to no more that the $5,000 he had already received.
Judgment affirmed. Johnson, C. J., McMurray, P. J., Andrews, P. J., Ruffin and Ellington, JJ., concur. Barnes, J., Dissents.
BARNES, Judge, Dissenting.
As I cannot agree that the trial court did not abuse its discretion by failing to give Richardson a thorough consideration of his case, I must respectfully Dissent.
In Wymbs v. Stokes, supra, this court held for the first time that the relationship between a grandparent and a deceased grandchild could be considered when determining the division of the grandchild's estate between the child's parents. While not changing the law, I think that Wymbs makes clear that this relationship is a factor to be considered under OCGA § 19-7-1 (c) (6): "Certainly, the impact of the relationships between a grandparent and a parent and a grandparent and a grandchild may be pertinent factors in determining the depth and extent of the relationship between a parent and a child in some cases." Wymbs v. Stokes, supra, 236 Ga. App. at 744. Wymbs cited no authority for this proposition other than the code section, and I have no found no other precedent on point. Therefore, I believe that before Wymbs a trial court would not necessarily know that this evidence could be considered. Moreover, while the trial court's order recites the text of the code section, it does not in any fashion refer to the evidence concerning the relationship between the deceased child and his grandmother. In particular, when discussing any "other factors found to be pertinent," the order focuses only on any possible relationship between Richardson and his son without regard to the evidence concerning the grandmother.
Because "appellate courts must apply the law as it exists at the time of the appellate court's judgment, even though doing so might change the judgment of the trial court which was correct at the time it was rendered" (Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (1) (498 SE2d 748) (1998)), we must review this appeal in light of Wymbs. Therefore, I find the trial court abused its discretion by failing to consider evidence of this relationship.
The record shows that Richardson's mother had frequent contact with the boy, that he visited and stayed with her for a month or so every year, and that she assisted Barber financially when she could. Rather than assuming the trial court would have reached the same result had it considered this evidence under Wymbs, I believe the trial court should be instructed to consider this evidence in apportioning the estate.
Accordingly, I must respectfully Dissent.
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