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Keywords

appealtrialdivorce
appealtrialcircumstantial evidence

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Simpson v. Simpson, 233 Ga. 17, 209 S.E.2d 611

Facts

The appeal arises from a custody case in DeKalb Superior Court where the trial judge found a material change in circumstances adversely affecting the welfare of the minor children after an earlier custody award in a divorce decree. The mother, who was initially awarded custody, lost custody in the present case, prompting her to seek a review of the trial court's order granting custody to the father. The father's case for a change in custody relied heavily on allegations of illicit conduct by the mother and a third-party witness.

The mother's counsel argues vigorously that: ‘Any implication or suspicions that there (was) illicit sexual intercourse between the (mother) and the witness . . . which might have arisen because of (the mother's) refusal to answer certain questions and because of the witness' . . . refusal to answer certain questions is not legal evidence, and the refusal of a party or witness to answer certain questions under the protection afforded him by law is not an admission or is it to be considered as an admission of such conduct.’

Issue

The main issues to be decided in this appeal are whether the trial court abused its discretion in awarding custody to the father and whether an unfavorable inference can be drawn from the mother's and the witness's refusal to testify about their alleged illicit conduct.

There are three issues to be decided in this appeal. The first is whether the trial court abused its discretion in awarding custody to the father under the evidence in this case.

Rule

The court applied the principle that an unfavorable inference may be drawn in civil cases from a party's refusal to testify about matters that could incriminate them, particularly when such refusal corroborates other evidence of alleged illicit conduct affecting the welfare of children.

Illicit conduct of the character sought to be proved by the father against the mother in this case can be proved by circumstantial evidence.

Analysis

The court analyzed the evidence presented, noting that the father's claims of illicit conduct were supported by the mother's refusal to answer questions regarding her relationship with the third-party witness. The court concluded that this refusal provided sufficient corroboration of the other circumstances shown by the evidence, which tended to prove such conduct. The court emphasized that the trial judge had broad discretion in custody matters and that the evidence was sufficient to authorize a change in custody.

We think the correct view was expressed by the Wisconsin Supreme Court when it held that although a person does have a right to invoke the privilege in a civil case in order to protect himself, when he does so, an inference against his interest may be drawn by the factfinder.

Conclusion

The court affirmed the trial court's judgment, concluding that the evidence supported the decision to change custody to the father and that the issue of supersedeas was moot.

Judgment affirmed.

Who won?

The prevailing party in this case is the father, as the court affirmed the trial court's decision to grant him custody of the children based on the evidence presented.

The father, through his counsel, argues just as forcefully that the law authorized the trial court to infer, from the refusal of the mother and third-party witness to testify about the details of their relationship and conduct, that they were guilty of the illicit conduct asked about in the unanswered questions.

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