Bankston v. Warbington

332 Ga.App. 29

771 S.E.2d 726

BANKSTON

v.WARBINGTON.

Warbington

v.Bankston.

Nos. A14A1514

A14A1515.

Court of Appeals of Georgia.

April 13, 2015.

Moss & Rothenberg, Robert A. Moss, Miles Patterson Hansford Tallant, Jennifer D. Patterson, The West Firm, Lisa Y.S. West, Atlanta, for appellant.

Kupferman & Golden, Gregory D. Golden, Atlanta, for appellee.

Opinion

BRANCH, Judge.

These companion appeals are the second and third arising from a custody dispute that went to trial in September 2012. In October 2012, the trial court issued an order modifying primary physical custody of the ten-year-old child at issue in favor of the father as of January 2013, but also including a self-executing provision that the mother would regain custody after 18 months (in the summer of 2014). In November 2013, the trial court ruled on the mother's post-trial motions and the father's request for attorney fees. On appeal in Case No. A14A1514, the mother argues that the trial court abused its discretion when it modified custody in favor of the father. On cross-appeal in Case No. A14A1515, the father argues that the trial court erred when it ordered the self-executing change of custody in the summer of 2014, when it increased his child support obligation as of that time, and when it failed to rule on the father's request for fees first made shortly after trial. We affirm the initial modification of custody as supported by the evidence, but we reverse those portions of the order implementing the self-executing return of custody and awarding child support to the mother. We also vacate the judgment as to fees and remand for further proceedings consistent with this opinion.

On appeal from a trial court's determination in a custody dispute, we defer to that court in all matters of fact:

When considering a dispute regarding the custody of a child, a trial court has very broad discretion, looking always to the best interest of the child. This Court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court's finding, we will not find there was an abuse of discretion.

Williams v. Williams, 295 Ga. 113(1), 757 S.E.2d 859 (2014) (citations and punctuation omitted). “We are mindful that the Solomonic task of making [custody] decisions lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.”Smith v. Curtis, 316 Ga.App. 890, 892, 730 S.E.2d 604 (2012) (citations and punctuation omitted).

Viewed in favor of the trial court's judgment, the record shows that the child at issue, a girl, was born on January 26, 2004. In a November 2004 consent order, the parties agreed that the mother would have primary physical custody of the child. In February 2006, after the mother moved out of Georgia, the father sought and obtained more visitation time. On February 9, 2011, the father filed the instant petition for a change in custody and child support, alleging inter alia that the mother had not provided a stable environment for the child and had alienated the child from the father.

In July 2011, the mother refused to pick up the daughter at Los Angeles International Airport (LAX) at a scheduled custody transfer such that the daughter was forced to return to Atlanta with her father before flying back to her mother in California.¹ On July 26, 2011, the mother filed an emergency motion for contempt against the father as to the airport incident, which the trial court characterized as a “honest disagreement” between the two parents. In April 2012, the trial court found that the mother and her counsel had thus “unnecessarily expanded the proceeding by improper conduct,” including the filing and defense of pleadings and motions “that lacked substantial justification or [were] interposed for delay or harassment,” and awarded the father $4,300 in attorney fees and expenses. In the case's first appearance on appeal, we affirmed the trial court's authority to award the father attorney fees, reversed the award of the father's air expenses as not authorized by OCGA § 9–15–14(b), and remanded for further proceedings as to the proper amount of the fee award. Bankston v. Warbington, 319 Ga.App. 821, 822 –823(2), 738 S.E.2d 656 (2013).

At the September 2012 trial on the father's petition to change custody, the trial court heard testimony from witnesses, including the child's guardian ad litem, that the mother had moved four or more times after leaving Georgia, each requiring a change in schooling arrangements and one occurring during the daughter's summer visitation with her father, and that the mother had failed to give the father sufficient notice of these relocations. Evidence at the hearing described the July 2011 mishap at LAX and showed that the mother discouraged the daughter from making friends in her neighborhood, deprived the father of meaningful telephone or teleconferencing contact, and disrupted therapy sessions by discouraging the daughter from acknowledging her father and not allowing the daughter to speak for herself. Evidence also showed that the mother's disdain for the father was damaging the daughter's relationship with him. On October 11, 2012, and citing OCGA § 19–9–3(a)(3) (N),² the trial court held that because “the only antidote to the alienating behaviors of the [m]other is to allow the child to be immersed in the [f]ather's [household] for a period of time,” it was “in the best interest of the child to award primary physical custody of the child to the [f]ather for a period of 18 months, to commence at the end of her scheduled winter vacation time with the [m]other in 2012,” until one week before the start of the child's 2014–2015 school year, when the mother would regain primary physical custody. The trial court also awarded child support from the mother to the father in the amount of $1,170 per month for the period of his primary custodianship and from the father to the mother in the amount of $890 per month “commenc[ing] September 1, 2014,” by which time custody would have returned to the mother. The court reserved the issue of fees.

In the weeks following the entry of this October 2012 judgment, the mother filed at least six different motions, none of which she designated for inclusion in the appellate record: a motion for new trial; motions for reconsideration of three of the trial court's orders, including its final judgment, on the basis in part of “newly discovered evidence” as to the father's drinking alcohol “at various local bars and restaurants”; a motion to provide the child with “a Healthy Allergy Free Environment”; a motion for entry of an order regarding reimbursement of medical expenses; and a motion to correct a child support worksheet. After a hearing, the trial court denied the motion for new trial, noting as it did so that the mother had withdrawn her motion for reconsideration based on newly discovered evidence.

On January 24, 2013, the mother, who had retained new counsel Lisa West, moved to recuse the judge presiding over the case on the ground that the judge had previously recused herself from cases in which West was involved. On February 7, 2013, the judge granted the mother's motion to recuse, but noted the court's “grave[ ] concern[ ] at the prospect of creating a situation in which any litigant before it who has been disappointed with an interim decision can try their luck with another [j]udge simply by retaining Ms. West.” On October 4, 2013, the mother again moved for contempt against the father on grounds including that the father had refused to allow the mother to have lunch alone with the child.

A hearing on all pending post-trial matters was held on October 14, 2013. On November 1, the trial court found that a number of the mother's filings, including the October 2013 contempt motion, had been “frivolous and vexatious” and awarded the father $9,362.50 in attorney fees. After the docketing of this appeal and its cross-appeal in this Court, the father moved this Court for emergency supersedeas on the grounds that the trial court erred when it issued the self-executing provision returning custody to the mother in the summer of 2014. We granted the father's emergency motion and ordered the parties and the trial court not to observe the self-executing change-of-custody provision pending our final disposition of these appeals.

Case No. A14A1514

1. On the first appeal, the mother argues that the trial court abused its discretion when it modified custody in favor of the father as of January 2013. We disagree.

“A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child.” Lynch v. Horton, 302 Ga.App. 597, 600(4), 692 S.E.2d 34 (2010) (punctuation and citation omitted); see also OCGA § 19–9–3(b) (trial court may modify custody “based upon a showing of a change in any material conditions or circumstances of a party or the child”); Weickert v. Weickert, 268 Ga.App. 624, 627(1), 602 S.E.2d 337 (2004) (trial court is not required to find a material change for the worse in order to modify custody). A determination that there has been a material change in condition supporting a modification of custody will be affirmed absent an abuse of discretion, and “[w]here there is any evidence to support the trial court's ruling, a reviewing court cannot say there was an abuse of discretion.”Vines v. Vines, 292 Ga. 550, 552(2), 739 S.E.2d 374 (2013) (affirming trial court's denial of motion to modify visitation rights as supported by some evidence).

The mother argues that the trial court's finding regarding the best interests of the child under OCGA § 19–9–3(a)(3)(N) as to the mother's unwillingness “to facilitate and encourage...