Borgers v. Borgers

347 Ga.App. 640

820 S.E.2d 474

BORGERS

v.BORGERS.

A18A0910

Court of Appeals of Georgia.

October 18, 2018

Joel Hamilton Thornton, for Appellant.

Samir J. Patel, Cartersville, for Appellee.

Mercier, Judge.

We granted Stefanie Borgers’s application for discretionary appeal in order to determine whether the trial court erred by (1) modifying custody in a post-divorce contempt proceeding when no motion to modify custody was made, and (2) ordering her to cease home-schooling one of her children and to enroll the child in school. For the reasons that follow, we reverse.

The record shows that Stefanie Borgers (the "mother") and Brian Borgers (the "father") divorced in 2013.¹ The final divorce decree (the "divorce decree") awarded the parties joint legal custody of their three minor children, but awarded the mother primary physical custody and final decision-making authority regarding the children. In the divorce decree, the court "expressed concern as to whether home-schooling is in the best interests of these children[,]" but did not prohibit the mother from continuing to home-school the children.

On February 10, 2016, the father filed a "Petition for Contempt and Modification of Custody" (the "first contempt petition"), which requested that the trial court hold the mother in contempt for failing to abide by the court-ordered visitation schedule and parenting plan; compel her to refrain from alienating the children from the father and to comply with visitation requirements; modify the father’s child support obligation to reflect his then-current earnings; and award attorney fees to the father. In the first contempt petition, the father noted: "This Honorable Court, in its [divorce decree], expressed concern as to whether homeschooling the minor children was in their best interest; despite the Court’s concern, the Mother continues to home-school the minor children." However, despite its title, the first contempt petition did not request a change in child custody.

On April 27, 2016, the trial court held a temporary hearing "regarding child support only." This hearing apparently was not transcribed. The trial court thereafter entered a temporary order modifying the father’s child support obligation and stating "[a]ll other issues not herein amended shall remain in full force and effect."

Although the court’s temporary order only addressed child support and specifically noted that the temporary hearing addressed "child support only," on September 2, 2016, the father filed a Petition For Contempt of the Court’s Temporary Order (the "second contempt petition"), contending that the mother interfered with court-ordered counseling and was in contempt of the parenting plan. In the second contempt petition, the father sought, among other things, to have the mother held in contempt and incarcerated. The second contempt petition did not mention homeschooling or request a modification of custody.

Following a hearing that apparently was not transcribed, the trial court issued on June 1, 2017 a "Final Order Regarding Contempt Order and Modification" resolving both contempt petitions.

The court found the mother in contempt of the court-ordered parenting plan and sentenced her to serve ten days in jail, which sentence was suspended at the father’s request, subject to other conditions set forth in the order. The court also set forth a visitation schedule, awarded attorney fees to the father, and set the case for an August 2017 status hearing. The order specifically stated that "[a]ll other issues not herein amended shall remain the same as previously adjudicated[.]" With regard to home-schooling, the court stated,

The Court finds it to be a shame that the Defendant Mother has not taught her children to be independent; the [c]ourt makes the findings based on the expert witness testifying that the children have issues in small classes as they have been previously home schooled by the Mother. The [c]ourt has informed the Mother as it was not requested she will not change custody[.]

On August 16, 2017, the trial court held a status hearing that apparently was not transcribed. Following the hearing, the court entered a "Compliance Order" on August 29, 2017, finding that "all parties ha[d] complied with the [c]ourt’s previous final order." However, the Compliance Order also stated the following:

The [c]ourt also heard argument concerning the parties’ youngest child’s schooling. The [mother], through her counsel, presented to the [c]ourt that since the previous hearing the parties’ youngest child was taken out of Montessori School and at the time of the hearing was being home schooled. The [c]ourt, based on the previous recommendations provided by Dr. Patricia Wright at the May[ ] 2017 hearing and the [c]ourt’s own beliefs as to the child’s best interest hereby orders the [mother] to immediately enroll the child in school and ensure the child is not "home schooled" for the purposes of the child’s education. The [c]ourt finds that the child’s enrollment and attendance at the Montessori School should be convenient for the child and Mother as the Mother is actively employed with the Montessori School and the child would benefit from the wonderful educational opportunity at the Montessori School.

1. The mother argues on appeal that because the final divorce decree made her the primary physical custodian and final decision-maker regarding the children, which included the authority to make decisions regarding the children’s education, the trial court’s order that she enroll the parties’ youngest child in school, rather than allowing her to home-school the child, constitutes an improper modification of custody in this contempt action.

"In a contempt proceeding, as here, the trial court has authority to interpret the meaning of a divorce decree. In such action, the trial court does not have authority to modify a final judgment and divorce decree." McCall v. McCall , 246 Ga. App. 770, 772 (1), 542 S.E.2d 168 (2000) (footnote omitted). Thus, we first must determine whether the order at issue here modified the parties’ divorce decree. If so, we must determine whether the court erred in modifying the divorce decree.

(a) While there do not appear to be any cases specifically holding that an order directing a child’s final decision-maker to educate the child in a particular manner constitutes a modification of the final divorce decree, it is clear that "[w]here a child goes to school is a parental decision," Daniel v. Daniel , 250 Ga. App. 482, 485 (2), 552 S.E.2d 479 (2001), and this Court has previously issued a few rulings tangentially relating to this issue. For example, in McCall , 246 Ga. App. at 771, 542 S.E.2d 168, the mother was granted sole custody of the children, and the father filed a motion for contempt, arguing, in part, that the mother had failed and refused to facilitate his receipt of information about the children’s school work. The trial court granted the father, among other things, direct access to schools, health care providers, tutors, or therapists to obtain any information, reports, or records that he desired. Id. at 771-772, 542 S.E.2d 168. We agreed with the mother that by extending to the father rights reserved to her in the final divorce decree as the sole legal custodian of the children, the trial court "transformed the final judgment" and effectively granted a change in custody equivalent to "joint legal custody," which it was not authorized to do in a contempt proceeding. Id. at 773-774 (2), 542 S.E.2d 168.

In addition, this Court has not questioned whether actions appealed regarding a change in a child’s education were properly brought as custody actions. For instance, in Daniel , 250 Ga. App. at 483, 552 S.E.2d 479, the parties were awarded joint legal custody of their minor child and the agreement contained no "tie breaking" provision. Following the divorce, the Daniels began to disagree regarding their child’s education: the mother wanted to home-school the child, and the father wanted the child to attend public school. Id. The mother filed a petition for a change of custody, requesting that she be designated the primary decision-maker with regard to the child’s education, religious training, and health care issues, and the father counterclaimed, requesting that the trial court make him primary decision-maker regarding his child’s education. Id. This Court noted, "the modification of custody requested by the Daniels in this case requires a finding of a material change of condition[,]" Id. at 483 (2), 552 S.E.2d 479, thus implying that a change regarding which parent has primary decision-making authority over education is a change in custody.

Similarly, in Fox v. Korucu , 315 Ga. App. 851, 854-855, 729 S.E.2d 16 (2012), an appeal of a ruling in a custody modification action, this Court held that a disagreement regarding a child’s education may constitute a material change in circumstances sufficient to justify a custody modification if there is evidence of a material change in circumstances that adversely affects the child. In Odum v. Russell , 342 Ga. App. 390, 802 S.E.2d 829 (2017), another appeal of an order in a custody modification action, the trial court modified several parenting provisions of the original divorce decree, including changing the final decision-making authority about education from the father to the mother. We held that "the trial court was not authorized to modify the original custody order by altering parental custody arrangements, which included arrangements over which parent would have final authority over certain decisions relating to the child" because the trial court had expressly found that there had been no material change in circumstances. Id. at 393 (1), 802 S.E.2d 829. Likewise, in Terry v. Garibaldi , 274 Ga. App. 405, 618 S.E.2d 6 (2005), the mother sought a change of custody based in part on the parents’ inability to make a decision regarding whether their child should attend public or private...