Epstiner v. Spears

340 Ga.App. 199

796 S.E.2d 919

EPSTINER

v.SPEARS.

A16A2156

Court of Appeals of Georgia.

February 10, 2017

Patricia Bennett Ball, Ball Family Law, for Appellant.

Odis William Williams II, for Appellee.

Branch, Judge.

In this child custody case, Rebecca Boehmer Epstiner appeals from an order of the Cherokee County Superior Court granting Tyler Dean Spears's motion to modify the order previously entered by the court as to the custody of the parties' minor child. Epstiner argues that although the original custody order did not accurately reflect the ruling of the trial court, counsel for Spears approved that order. She contends that because Spears bears some responsibility for the errors contained in the original order, OCGA § 9–11–60 did not authorize the trial court to set aside or amend that order. Epstiner further asserts that the trial court erred because its current order fails to meet the requirements for a custody modification order set forth in OCGA § 19–9–1 (b). We find no merit in Epstiner's claim that the trial court erred in modifying the custody provisions of its previous order of judgment, and we therefore affirm the trial court's grant of Spears's motion. We agree with Epstiner, however, that the current order fails to comply with the applicable statutory requirements. We therefore vacate that order and remand for entry of a new order that complies with OCGA § 19–9–1 (b).

The relevant facts are undisputed and show that Epstiner and Spears are the parents of a minor child, L. B. S., born on December 10, 2010. In August 2013, Spears filed a Petition for Legitimation, Custody and Child Support as to L. B. S. A bench trial on that petition was held on April 22, 2015, and at the conclusion of that trial the court issued an oral ruling as to Spears's custody and visitation rights.¹ In its oral ruling, the trial court granted Spears supervised visitation for a period of time and stated that beginning October 30, 2015, Spears was granted unsupervised visitation every other weekend, with the visitation to begin on Fridays at 6:00 p.m. and end on Sundays at 6:00 p.m. The court directed counsel for Epstiner to draft an order reflecting the court's ruling. Both parties thereafter submitted a proposed order and the trial court copied language from each of those orders to create the final order of judgment, which was entered on April 29, 2015.² It is undisputed, however, that the judgment did not accurately reflect the court's oral ruling. Specifically, the order entered used language taken from the proposed order drafted by Epstiner's counsel which provided that Spears's weekend visitations would not begin until Saturday mornings, and which also imposed certain conditions on Spears's visitation that were not set forth in the trial court's oral ruling. Under the terms of the written order, if Spears was more than 15 minutes late in picking up his son for visitation, he forfeited the entire visitation period. Additionally, the order barred Spears from designating anyone other than himself from picking up the child if Spears was unable to pick up L. B. S. at the designated time.

Spears's prior counsel consented to the original order as to form, but there is no evidence showing that Spears saw or approved that order before it was entered. When Spears pointed out the errors in the order to his previous counsel, that attorney declined to attempt a remedy. Spears thereafter retained new counsel, and on February 2, 2016, he filed a Motion to Partially Set Aside Judgment or in the Alternative to Amend the Final Order on Petition for Legitimation, Custody, and Child Support. By way of that motion, Spears sought to have the original order vacated and a new order entered that accurately reflected the trial court's oral ruling. Alternatively, Spears sought an amendment of the trial court's order to reflect the terms of visitation as set forth by the court in its oral ruling and to omit the conditions relating to the forfeiture of visitation and the restrictions on Spears's right to designate individuals who could pick up and drop off the child.

At the hearing on Spears's motion, the trial court read into the record its oral ruling as to visitation, as it appeared in the transcript of April 22, 2015. The court then held that the judgment entered did not reflect the court's ruling and that this mistake had occurred "through no fault of" Spears. Specifically, the court noted that the original order of judgment

tracked the [c]ourt's language exactly as [the court] dictated, and then it went off track and did not follow the [c]ourt's [oral] order as to overnight visitation ... and deleted about 20 lines of the [c]ourt's [oral] order, which addressed the weekend visitation from Friday night to Sunday evening. Once that was done ... the order [again] tracked and the parenting plan tracked exactly what the [c]ourt dictated from the bench ... on the 22nd day of April 2015. This [c]ourt cannot find that [the erroneous order] was a mistake or any fault of [Spears]. And short of saying that it was a deliberate move [by the mother's trial counsel] to delete what this [c]ourt said, the [c]ourt's going to rely on the law and statutes to correct this oversight and mistake of the order.

The court thereafter entered a written order in which it relied on OCGA § 9–11–60 (d) (2) to grant Spears's motion. The current order purported to set aside the original judgment "as it relates to the visitation schedule between the Parties regarding the minor child beginning October 31, 2015." That order granted Spears "the visitation schedule rights that were originally granted [at the] April 22, 2015 [hearing,] according to the transcribed proceedings" and also gave Spears "overnight weekend visitation period from Friday night to Sunday evening." Additionally, the current order provided that Spears "shall not be deemed to forfeit the entire visitation where he cannot personally pick up [the] child within a fifteen (15) minute grace period," and that Spears "may designate parties that are able to pick up the minor child in his absence." Epstiner now appeals from the current order.

1. Epstiner argues that the trial court was without authority to set aside its original judgment pursuant to OCGA § 9–11–60 (d) (2)³ because, given that his attorney approved the erroneous order, Spears was not without fault with respect to that order. Regardless of whether Spears was entitled to have the judgment set aside, however, we find that given the order entered by the trial court, OCGA § 9–11–60 does not apply to this case.

Where a movant meets the requirements of OCGA § 9–11–60 (d), a trial court may set aside an entire judgment, thereby returning the case to the posture it occupied prior to the entry of judgment. See Porter – Martin v. Martin , 280 Ga. 150, 151, 625 S.E.2d 743 (2006) ; Osborne Bonding & Surety Co. v. State Ga. , 228 Ga.App. 383, 384 (2) (b), 491 S.E.2d 837 (1997). OCGA § 9–11–60 (d), however, does not authorize a court to revise or amend part of a judgment while leaving the judgment intact. Porter – Martin , 280 Ga. at 151, 625 S.E.2d 743. Here, although the trial court's current order purports to set aside its original order of judgment, the current order did not have that effect. Instead, the current order operated only to amend that portion of the original judgment that addressed Spears's visitation rights, leaving much of the judgment intact. And under Georgia law, we construe orders "according to their substance and function and not merely by nomenclature." State v. Chapman , 322 Ga.App. 82, 83, 744 S.E.2d 77 (2013) (citation and punctuation omitted). See also Forest City Gun Club v. Chatham County , 280 Ga.App. 219, 220, 633 S.E.2d 623 (2006). Accordingly, we treat the current order as amending the visitation provisions of the original order of judgment, rather than setting aside that judgment in its entirety. See Chapman , 322 Ga.App. at 83, 744 S.E.2d 77 (trial court's declaration of a mistrial following the entry of the verdict "[n]otwithstanding nomenclature ... was in substance the sua sponte grant of a new trial, and we will therefore treat it as such"). The initial questions presented by this appeal, therefore, are whether the trial court was authorized to modify its original judgment and, if so, whether it properly exercised that authority. We answer both of these questions in the affirmative.

The relevant Code section applicable to child custody actions provides, in part:

In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment....

OCGA § 19–9–3 (b).

"A trial court's decision regarding a modification of custody will be upheld on appeal in the absence of a clear abuse of discretion, and where there is any evidence to support the trial court's decision," we can find no abuse of discretion. McFarlane v. McFarlane , 298 Ga. 361 (1), 782 S.E.2d 29 (2016) (citation omitted). Here, the evidence showing that the original order of judgment did not accurately reflect the trial court's ruling was sufficient to support the trial court's decision to modify that judgment. Accordingly, we affirm the trial...