Strese v. Strese

237 Ga. 334 (1976)

227 S.E.2d 749

STRESE v. STRESE.

31140.

Supreme Court of Georgia.

Submitted May 17, 1976.

Decided July 9, 1976.

Rehearing Denied July 23, 1976.

*335 Carlisle & Chason, Willard H. Chason, for appellant.

Johnson & Morse, Charles F. Johnson, Altman, Williamson, McGraw & Loftiss, Robert B. Williamson, for appellee.

HALL, Justice.

This is a child custody case. The parties were divorced in 1975 and the custody of the couples' two minor children was awarded to the mother. The trial judge awarded him a judgment and the mother filed her notice of appeal on January 30, 1976. On March 25, 1976, the appellee filed a motion to dismiss the appeal on the ground that there had been an unreasonable delay in filing the transcript. The transcript was filed in the trial court on March 26, 1976, transmitted to this court and filed on March 30, 1976. The notice of appeal was dismissed by the trial court on April 2, 1976.

1. Appellee contends the judgment of the trial court must be affirmed for the reason that no appeal was taken from the order of dismissal by the trial court. See Gilman Paper Co. v. James, 235 Ga. 348 (219 SE2d 447) (1976). We disagree. The issue is controlled by this court's Rule 11(c): "Appellee shall be deemed to have waived any failure of the appellant to comply with the provisions of the Appellate Practice Act relating to the filing of the transcript of the evidence and the pleadings or transmittal of the record to this court unless objection thereto was made and ruled upon in the trial court prior to transmittal; and such order is appealed as provided by law." (Emphasis supplied.) In view of the fact that appellee's motion to dismiss the appeal was not ruled upon prior to transmittal, the objection is waived.

2. We find no "reasonable evidence" in this record upon which the trial court could hold that a material change of condition had occurred after the rendition of the former final custody award that adversely affected the welfare of the two minor children.

Judgment reversed. All the Justices concur, except Nichols, C. J., and Jordan, J., who dissent.