September 2019 Georgia Custody/Visitation Case Law Updates

September 2019 brought record breaking temperatures to Georgia. But that did not slow down the Court of Appeals. In September, the Georgia Court of Appeals released three custody and visitation related opinions, and three other family law related opinions.

Belknap v. Belknap, Case No. A19A0808, Georgia Court of Appeals, September 9, 2019.

Facts:

The Mother had primary custody of the parties’ two sons, and the Father had significant parenting time. The Father moved to Florida. In 2017, at the age of 14, the younger son signed an affidavit electing to live with the Father, who then filed a modification of custody and child support action. Discovery issues arose, and the trial court heard two motions to compel filed by the Mother. It, however, never reduced its oral rulings in the Mother’s favor to writing. At the final trial, the trial court found that a change in custody was not in the 14-year-old’s best interests, and it denied the Father’s modification request. The trial court’s order did not address child support. The Father appealed.

Holding:

Affirmed. O.C.G.A §19-9-3(a)(5) provides that a 14-year-old’s election to reside with a parent is presumptive unless the court finds that it is not in the child’s best interests. The trial court considered the child’s election affidavit, as well as other testimony and evidence, and found that maintaining continuity in the Mother’s custody was in the child’s best interests. A finding that the elected parent is a fit parent does not mandate that the child’s election be honored.

The trial court also did not abuse its discretion by not modifying the child support. The Father’s pleadings and arguments for modification of child support were tied only to his request for the son to live with him. He never requested a modification of child support in the event both children remained living with the Mother. Moreover, he presented no evidence or argument which would warrant a modification of child support. Finally, the Father cannot now complain that the trial court was silent on the issue of child support, since he waived the issue by his own failure to seek and obtain a child support ruling.

There were no written orders on the motions to compel. Nor was the transcript from the motions hearing included in the appellate record. Thus, the Court of Appeals cannot properly review the trial court’s grant of the motions, and must presume that the trial court ruled correctly.  

In the Interest of A.L., et al., minor children, Case No. A19A1523, Georgia Court of Appeals, September 12, 2019.

Facts:

A.L. and J.L. were removed from their mother’s custody in a dependency action, and placed in their biological father’s temporary custody. The father and children subsequently moved to Florida. Approximately two years later, the Mother filed a motion to change custody in the dependency action. The juvenile court dismissed the motion, finding that Georgia was no longer a convenient forum to try the custody issues. This appeal followed.

Holding:

The Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) applies in dependency cases involving custody of a child. Pursuant to O.C.G.A. §19-9-67(a), a trial court can decline to exercise jurisdiction if, under the circumstances, it determines that Georgia is an inconvenient forum, and that another state is a more appropriate forum. In making this determination, the court must make findings as to all relevant factors, including those contained in O.C.G.A. §19-9-67(b). Since the juvenile court did not make specific findings, the Court of Appeals vacated the dismissal of the Mother’s motion, and remanded the case for further proceedings. Furthermore, on remand, if the trial court finds that Georgia is an inconvenient forum, the proceedings should be stayed, rather than dismissed, so that the motion can be ruled upon in the appropriate forum.

Park-Poaps v. Poaps, 351 Ga. App. 856 (2019).

Facts:

The parties divorced in Georgia in 2014. Shortly thereafter, the Mother moved to Maryland, and custody was modified so that the children remained in Georgia with the Father, with the mother having visitation. The Mother was also required to pay child support to the Father. A travel deviation was included to allow her to regularly exercise visitation. Finally, the trial court found that the parties have an “ongoing tumultuous relationship” and that they cannot effectively co-parent or communicate with one another.

In 2018, after the Mother moved to Ohio, the Father filed a modification of custody and child support action. The Mother counterclaimed, alleging contempt of the visitation provisions of the modification order, and also seeking a modification of custody and child support. The trial court found that there was no material change in circumstances, and that it was in the children’s best interests to remain in the Father’s primary custody. The trial court also found that the Father was not in willful contempt of the modification order. Finally, the trial court found that the Mother had a substantial increase in her income, and that she did not exercise much of the visitation contemplated for the travel deviation in the previous child support calculation. Thus, the trial court revised the child support, eliminating the fixed monthly travel deviation. Instead, the final order provided that the Mother could deduct actual visitation travel expenses from future child support payments. The court also ordered both parties to pay a pro rata share of costs for the children’s extracurricular activities. Finally, the trial court awarded attorney fees to the Father pursuant to O.C.G.A. §19-6-15(k)(5). Both parties appealed.

Holding:

Custody Issues
The Mother failed to carry the burden of showing a material change of circumstances affecting the best interests of the children since the modification order. Thus, the Court of Appeals affirmed the trial court’s ruling. Even though the ongoing parental discord may have worsened, it did not rise to the level of a material change in circumstances. Nor did it affect the welfare of the children.

The Court of Appeals found unpersuasive the Mother’s argument that the trial court erred by requiring that some of the visitation take place in Georgia. The trial court must fashion a visitation schedule in the best interests of the children. Thus, the trial court was authorized to consider the possible effects of out of state visitation on the children, as well as the possible interference with their schooling and other activities.

The trial court did not err by declining to hold the Father in willful contempt of the visitation provisions of the modification order. The Father was entitled to rely on the plain terms of the order, and cannot be held in willful contempt for his “legalistic” and strict compliance with those terms.

Child Support Issues
The trial court did not abuse its discretion by finding a substantial increase in the Mother’s income justifying a modification of the child support. However, the trial court’s pro rata division of extracurricular activity costs fell outside of the parameters of the child support guidelines. Thus, the Court of Appeals reversed the child support award and remanded the issue for further proceedings. Similarly, the provision allowing the Mother to deduct the actual visitation travel expenses from future child support payments was too speculative to fall within the parameters of the guidelines.

The trial court did not err in eliminating the original travel deviation. The evidence was that for various reasons the Mother did not exercise much of her visitation. Thus, the circumstances that supported the travel deviation in the modification order no longer existed. Furthermore, the trial court could not continue the previous travel deviation, or impose a new one, without written findings to “connect the dots” by supporting the deviation and explaining why the presumptive guidelines would be unjust or inappropriate.

With regard to the revised travel and extracurricular activities deviations, O.C.G.A. §19-6-15(c)(2)(A) requires child support to be in a “sum certain amount.” Thus, on remand, the trial court must first determine if, pursuant to O.C.G.A. §19-6-15(i)(2)(J)(ii), deviations from the presumptive amount of child support should be granted. If so, the trial court should support the specific deviations with written findings of fact. It should also include Schedule E deviations in the Child Support Worksheets, which should be incorporated into the final order. The calculations and deviations should be based on accurate facts and figures, and not on speculation as to future events.

Miscellaneous Issues
The Court of Appeals rejected the Mother’s argument that the trial court excluded certain income evidence. The Mother made no proffer for the record of what the evidence would show. Thus, she cannot show what harm, if any, came from its exclusion. Furthermore, the Mother cannot now complain that the trial court improperly excluded testimony since it was her objection to some of the excluded testimony that the court sustained.

The trial court did not have the authority to award child dependency exemptions to the non-custodial Mother. Thus, it did not err by awarding the dependency exemptions for both children to the Father.

Finally, O.C.G.A. §19-6-15(k)(5) authorizes the attorney’s fees award to the Father since the Mother was not always available to exercise visitation. However, because the Court of Appeals reversed the child support award, it also vacated the attorneys fees award. Thus, on remand, once the child support is re-calculated, the trial court should re-consider whether the Father is the prevailing party under O.C.G.A. §19-6-15(k)(5), and if so, how much in attorneys fees he should be awarded.

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Related Family Law Cases Released in September, 2019:

Contempt
Berry v. Berry, Case No. A19A0858, Georgia Court of Appeals, September 6, 2019.

The trial court cannot modify the terms of a divorce decree in a contempt action. Per the divorce decree, the Husband was responsible for the mortgage debt on the marital residence. Thus, the trial court erred in this contempt action by requiring the Wife to assume liability for a mortgage shortfall. However, the final decree did not fully address payment of closing costs upon the sale of the residence. Accordingly, the trial court did not err in splitting those costs between Husband and Wife.

Findings of Fact
In the Interest of G.G., a child, Case No. A19A1569, Georgia Court of Appeals, September 20, 2019.

Findings of fact should not be a mere recitation of the testimony and evidence. Rather, the trial court should make specific findings of fact, including findings as to the credibility of witnesses. Furthermore, the trial court’s findings of fact should be stated clearly and separately from the conclusions of law, with no intermingling between the two.

Pro Se Litigants
Jha v. Menkee, Case No. A19A1180, Georgia Court of Appeals, September 25, 2019.

O.C.G.A. §15-19-51, which prohibits the unauthorized practice of law, does not prohibit a pro se litigant from representing him/herself. Moreover, every party to a lawsuit has a well-established right to a thorough and sifting cross-examination of the opposing parties’ witnesses. The trial court may limit cross-examination to relevant matters and proper questioning. However, the trial court must afford every party due process, and allow reasonable cross-examination.