Davis v. Taylor

898 S.E.2d 574

DAVIS

v.TAYLOR.

A23A1384

Court of Appeals of Georgia.

February 13, 2024

Reconsideration Denied March 6, 2024

Carol Suzette EllisHoyle, for Appellant.

Douglas John Hassinger, Cumming, Anna E. O’Donnell, for Appellee.

McFadden, Presiding Judge.

After a bench trial, the trial court entered orders granting Rafael Taylor’s petition to legitimate his biological daughter, C. T., and awarding him joint legal custody and primary physical custody of the girl. On appeal, C. T.’s mother, Nikesha Davis, challenges the custody ruling, but we find that the trial court was authorized to decide the question of custody and that the evidence supported the trial court’s decision.

Davis also challenges various other rulings or actions by the trial court: the pre-trial entry of an interim parenting plan; the denial of Davis’s motion to compel discovery; the alleged failure to enforce a notice of production that Davis served on Taylor; rulings related to child support; and the award of attorney fees to Taylor. Davis has not shown that she is entitled to the reversal of any of these rulings, so we affirm.

[1, 2] In her appellate brief, Davis also criticizes the legitimation order and asserts in a footnote that we should reverse that ruling. But she has not included that ruling in her enumeration of errors. "[A]n appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of errors[.]" Felix v. State, 271 Ga. 534, 539 n. 6, 523 S.E.2d 1 (1999). So we do not review the legitimation order for possible reversible error.

1. Facts and procedural history

[3–5] "When reviewing an order in a child custody case, we view the evidence in the light most favorable to the trial court’s decision." Mashburn v. Mashburn, 353 Ga. App. 31, 32, 836 S.E.2d 131 (2019). In doing so, we limit our discussion of the facts to those "found by the superior court and supported by the evidence[.]" Mathenia v. Brumbelow, 308 Ga. 714, 715 (1), 843 S.E.2d 582 (2020). "We will not set aside the trial court’s factual findings if there is any evidence to support them, and we defer to the trial court’s credibility determinations. We review de novo, however, the legal conclusions the trial court draws from the facts." Mashburn, supra (citations omitted).

So viewed, the evidence shows that C. T. was born to Davis in 2009. It is undisputed that Taylor is C. T.’s biological father, but he and Davis have never been married.

Taylor has been involved in C. T.’s life since the girl’s birth and the two have an ongoing relationship. Taylor came to the hospital when C. T. was born, and C. T. has regularly visited Taylor and his family. Taylor has paid Davis child support since C. T. was a baby.

In September 2021, with Davis’s knowledge and permission, C. T. began living with Taylor. In November 2021, Davis told Taylor to return the girl to her, but Taylor did not do so. Instead, on December 1, 2021, Taylor filed in the Superior Court of Fulton County a petition asking the trial court to legitimate C. T. and award him custody, parenting time, and child support.

Shortly thereafter, Davis filed in the Superior Court of Gwinnett County a writ of habeas corpus and emergency motion for C. T.’s return. After a hearing (a transcript of which is not part of the record on appeal), the Gwinnett County court issued an order on December 10, 2021 (hereinafter the "habeas order"), holding that C. T. "shall be re- turned, instanter, to the sole custody of her mother, [Davis]. [Taylor] shall take no action to interfere with the right of the mother to sole custody of said child until and unless a court of competent jurisdiction grants an order allowing [Taylor] custody or parenting time with the minor child." At that point, C. T. returned to Davis.

Subsequently, Davis filed in the Fulton County legitimation action an answer opposing legitimation, a counterclaim for a modification of child support from Taylor, and a motion to dismiss Taylor’s petition. In support of her motion to dismiss, Davis argued that the Gwinnett court’s habeas order barred Taylor’s legitimation petition and she argued that the trial court should not legitimate C. T. because Davis had abandoned his opportunity interest in developing a relationship with the girl. See generally Mathenia, 308 Ga. at 721 (3) (b), 843 S.E.2d 582 (unwed father has an opportunity interest to develop a relationship with his children which is protected by due process of law but which can be abandoned if not timely pursued by, among other things, inaction during pregnancy and birth, delay in filing a legitimation petition, and lack of contact with the child).

The trial court denied Davis’s motion to dismiss in April 2022 and, at Taylor’s request, appointed a guardian ad litem to evaluate C. T.’s best interest. Later that year, the trial court held two temporary hearings. (The appellate record does not contain a transcript of either hearing.) In August 2022, after the first of those hearings, the trial court denied Davis’s request for a temporary increase in the child support she received from Taylor and entered a case management order that addressed discovery deadlines, among other things. In October 2022, after the second of those hearings, the trial court partially denied a request by Davis to compel discovery from Taylor, set a bench trial for January 2023, and entered an interim order allowing Taylor parenting time with C. T. Parenting time was granted for the express purpose of facilitating the guardian ad litem’s investigation into whether an award of custody or visitation to Taylor would be in the girl’s best interest. The trial court denied Davis’s request for a certificate of immediate review from the interim parenting-time order.

In late November 2022, Davis stopped allowing Taylor parenting time with C. T., and on December 5 she filed a motion to suspend Taylor’s parenting time, alleging that Taylor had physically attacked the girl. The guardian ad litem opined that Davis’s allegations about the attack were not credible and recommended that the trial court continue Taylor’s parenting time. Following that recommendation, the trial court entered an order denying Davis’s request to suspend parenting time. Nevertheless, Taylor did not have any more parenting time with G. T. before the bench trial. The guardian ad litem testified that, notwithstanding the trial court’s orders, Davis had refused to allow contacts.

In December 2022, Davis filed what she styled an "amended" motion to dismiss Taylor’s legitimation petition, again asserting that the habeas order barred the action. The trial court denied that motion, stating that Davis’s motion to dismiss "was previously heard and denied by order entered 4/20/22" and "cannot be amended after denial." In the weeks leading up to the bench trial, Davis filed another motion to compel discovery from Taylor, which the trial court denied.

The bench trial occurred on January 31, 2023. At its outset, Davis told the trial court that Taylor had not produced documents in response to a notice to produce, and the trial court stated that she would take Taylor’s noncompliance into account when assessing the evidence at trial. Davis did not object to that course of action.

At trial, the guardian ad litem opined that legitimation was in C. T.’s best interest. She recommended that the trial court award Taylor primary physical custody due to concerns that Davis was alienating the child from Taylor.

On February 1, 2023, the day after the bench trial, the trial court entered an order legitimating C. T. And on February 7, 2023, the trial court entered a final order that, among other things, designated Taylor as C. T.’s primary physical custodian and awarded Taylor child support and attorney fees.

2. Custodial award

Davis argues that the trial court erred in awarding primary physical custody of C. T. to Taylor for several reasons: because the earlier habeas order barred the trial court from adjudicating the issue of custody; because Taylor did not satisfy the statutory requirements for a custody modification; and because the evidence did not support the award. We are not persuaded.

(a) The habeas order did not bar the trial court from adjudicating custody in the legitimation proceeding

[6] First, we find no merit in Davis’s argument that, under principles of res judicata or collateral estoppel, the trial court could not decide the issue of custody raised in Taylor’s legitimation petition because another court previously had adjudicated that issue in the habeas proceeding. The two courts adjudicated different issues.

[7] The Gwinnett County court, which issued the habeas order, decided a very narrow question regarding custody: whether Davis had lost that right. A child’s legal custodian may seek a writ of habeas corpus under OCGA § 9-14-2, as Davis did, to enforce his or her custody right to a child detained by another. See Douglas v. Douglas, 285 Ga. 548, 550 (2), 678 S.E.2d 004 (2009). That Code section gives the trial court discretion "as to whom the custody of the … child shall be given …." OCGA § 9-14-2. But "[s]uch discretion should be … exercised in favor of the party having the prima facie legal right to custody of the child unless the evidence shows that such person has lost the right to custody through one of the ways recognized in OCGA §§ 19-7-1 and 19-7-4 or through unfitness." Douglas, supra at 551 (2), 678 S.E.2d 904 (citation, punctuation, and emphasis omitted). Davis had the prima facie right to custody of C. T. at the time of the habeas proceeding, see OCGA § 19-7-25, so the habeas court considered only whether Davis had lost that right, see Douglas, supra, not whether a different custodial arrangement would be in the girl’s best interest. Indeed, the habeas court expressly anticipated that future proceedings before a court of competent jurisdiction might result in an award of custody or parenting...