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Jones v. Smith

In the absence of a transcript, the evidence presumably supported the trial court's award of sole physical custody to the wife.

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Franklin Jones and Nancy Smith who have one minor child were divorced in 2005. In the final judgment and decree of divorce entered on September 13, 2005, the trial court awarded the parties joint legal custody of the minor child, with sole physical custody to appellee-wife. Based upon the evidence presented, the trial court determined that appellant was in wilful contempt for being in arrears in temporary child support, for having failed to comply with the terms of a motion to compel discovery, and for having refused to pay attorney fees to appellee’s attorney pursuant to a court order. Appellant filed a pro se application for discretionary review which we granted pursuant to this Court’s pilot project. See Wright v. Wright , 277 Ga. 133 587 SE2d 600 2003. 1. Appellant contends that the trial court abused its discretion in awarding physical custody of the minor child to appellee and restricting him to a specific visitation schedule, arguing that the evidence showed that the best interests of the child were better served by awarding joint physical custody. See OCGA § 19-9-3 a 2. As a general rule, where the trial court exercises its discretion and awards custody of a child to one fit parent over the other fit parent, an appellate court will not interfere with that decision unless there is evidence the trial court clearly abused its discretion. Welch v. Welch , 277 Ga. 808, 809 596 SE2d 134 2004. Here, in the absence of a transcript or a stipulation of evidence promulgated in accordance with OCGA § 5-6-41 g, we must presume that the evidence supports the findings made by the trial court. See Blue v. Blue , 279 Ga. 550 1 615 SE2d 540 2005.

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