Holdaway v. Holdaway

338 Ga.App. 477

789 S.E.2d 817

Holdaway

v.Holdaway.

A16A1239

Court of Appeals of Georgia.

August 3, 2016

James Michael Adam, Atlanta, for Appellant.

Steven M. Reilly, Lawrenceville, for Appellee.

Barnes, Presiding Judge.

The father, Owen Lee Holdaway, filed a child custody modification action against the mother, Bobbi Sue Holdaway, seeking primary custody of their daughter, L.H. The maternal grandmother, Terry Jo Stewart, filed a motion to intervene in the custody modification action, seeking custody of the child or, in the alternative, visitation rights. The trial court granted the grandmother's motion to intervene, and, after conducting a bench trial, the court awarded the grandmother custody of the child and awarded the father visitation. On appeal, the father challenges the trial court's award of custody to the grandmother, contending that there was insufficient evidence that the child would be harmed if placed in his custody, and that the court applied the wrong legal standard under our Supreme Court's recent decision in Stone v. Stone , 297 Ga. 451, 774 S.E.2d 681 (2015). For the reasons discussed below, we affirm.

Following a bench trial in a child custody case, we view the evidence in the light most favorable to the trial court's decision. Strickland v. Strickland , 298 Ga. 630, 633–634, 783 S.E.2d 606, 610 (2016). So viewed, the record reflects that the mother and father were married in 2007 when they were 20 years old. Shortly after the mother and father were married, their daughter L.H. was born. L.H. was eight years old at the time of the bench trial.

L.H. has a sister who is approximately one year older than her. The older sister has the same mother but a different biological father than L.H. and was around six-months old at the time of the 2007 marriage. It is undisputed that the father in this case has no legal custodial rights over the older sister.

In 2009, the mother and father divorced. Under the terms of the divorce agreement entered into by the parties and incorporated into the final judgment and decree of divorce, the mother and father shared joint legal custody of L.H., with the mother receiving primary physical custody and the father receiving visitation. The divorce agreement did not contain any provisions applicable to L.H.'s older sister.

Shortly after the divorce, the mother, L.H., and L.H.'s older sister moved into the home of the maternal grandparents. The maternal grandmother became the primary caregiver of the children and developed a strong bond with them. The maternal grandmother also became the legal guardian of L.H.'s older sister.

In the years after the divorce, the mother suffered problems with drug and alcohol addiction, was admitted into an in-patient substance abuse rehabilitation program, spent time in jail, and had two more children with different fathers. The mother lived with the maternal grandparents only sporadically, while L.H. and her older sister remained in the continuous care of the maternal grandmother. The mother provided no financial support for the children and did not see them consistently.

The father acquiesced to the maternal grandmother serving as the primary caregiver of L.H. because he believed that the grandmother provided a more stable environment for the children than the mother, and his erratic employment situation prevented him from having L.H. live with him. The father exercised visitation with L.H., but not to the full extent authorized by the divorce agreement. He also maintained contact with L.H.'s older sister, who would join L.H. when she had visitation with the father. The father did not consistently pay his child support on time or provide health insurance for L.H. as required by the divorce agreement.

In 2014, following a dispute over summer visitation, the father filed a petition to modify child custody against the mother in which he sought primary physical custody of L.H. The maternal grandparents stopped permitting the older sister to join L.H. on her weekend visits with L.H.'s father from that point forward.

The maternal grandmother filed a motion to intervene in the child custody modification action, seeking custody of L.H. or, in the alternative, visitation rights.¹ The trial court granted the grandmother's motion to intervene, and a two-day bench trial was conducted in 2015.

At the bench trial, several witnesses testified about the uncharacteristically close relationship between L.H. and her older sister, and about the strong bond between the maternal grandmother and the two sisters that had developed after many years of living together. One witness, a retired school teacher and friend of the maternal grandmother, testified that L.H. and her older sister were extremely close, much more so than most children their age, and that the grandmother was “the stabilizing force in those girls['] lives.” Another friend of the maternal grandmother testified that L.H. and her sister are “Super Glued together and when they're apart, they're miserable.”

Additionally, the sisters' uncle testified that the sisters are closer than most siblings and are together most of the time, that the grandmother had raised the two sisters as her own daughters, and that it would be wrong to remove L.H. from the home of her older sister and grandmother with whom “she's got such a strong bond.” The maternal grandfather similarly testified that the sisters are like “Frick and Frack” because “they are tight, tightest sisters,” and described L.H.'s relationship with her maternal grandmother as being “like Velcro.... [W]herever [the grandmother] goes, [L.H.] goes.” The grandfather further testified that it would emotionally harm L.H. to be separated from the household of her sister and grandmother.

The mother testified at the bench trial as well. She described the maternal grandmother as “the rock, the foundation for those kids.” In discussing the relationship between L.H. and the older sister, the mother testified, “I cannot imagine ... moving both or either one of them without causing some sort of emotional turmoil,” and described them as being “like two pieces in a puzzle that fit together.” The mother referred to the maternal grandparents as the sisters' “solid foundation,” and noted that the sisters “are each other's foundation as well,” given that [t]hroughout their entire li[ves], the one thing that has remained stable ... is that they were together.”

The maternal grandmother also testified at the bench trial. She testified that L.H. and her older sister are extremely close, to the extent that they sleep together in the same bed every night, that they “thrive on each other,” and that it would hurt them to be separated from one another. According to the maternal grandmother, “emotionally it's going to kill them” if the two sisters were separated from the same household, and L.H. would suffer emotional harm if primary physical custody was granted to the father. The maternal grandmother further testified that L.H. went to a great elementary school and had good friends and indicated that those aspects of her life would be entirely disrupted if she were removed from her current home. Additionally, the grandmother testified that L.H. had become more quiet and withdrawn since this litigation began and that she was currently taking L.H. and her older sister to a counselor.

When the father testified at the bench trial, he noted that the maternal grandparents had been a source of stability for L.H. and her sister and that they provided the best home for the children after the divorce. He acknowledged the close relationship between L.H. and her older sister and testified that the older sister could visit as often as she wanted if he obtained primary custody of L.H., but he conceded that he had no legal custodial rights to the older sister. The father further testified that he had lived at five different residences and had eleven different jobs since his divorce from the mother, and that his current job was only a month old. The father also conceded that he had not consistently paid his child support on time or provided health insurance for L.H. as required by the divorce agreement, although he was now current on his child support obligations and had health insurance in place for L.H. Additionally, the father testified that after the divorce, he had begun dating a 17– year–old high school student when he was 26 years old, and that he would not disapprove of L.H. having a similar relationship with an older man and believed that his relationship with the student provided a good model for L.H.

The father also called his girlfriend and his own father, i.e., the paternal grandfather, as witnesses at the bench trial. They both testified that the father is a capable and loving parent to L.H. and that it would be in her best interest to reside with him.

At the conclusion of the bench trial, the father requested that the trial court grant primary physical custody of L.H. to him and visitation to the maternal grandmother. The mother requested that the court grant primary physical custody of L.H. to the grandmother and visitation to the mother. The grandmother requested that the court grant primary physical custody of L.H. to her and visitation to the father, but not the mother.

After hearing from the parties, the trial court ruled from the bench, finding that awarding physical custody of L.H. to the father or mother would “completely undermine the stability of the child's current home,” would “traumatically change the continuity of the child's life,” and “would sever, or at least dramatically change the relationship that she has with her closest sibling.” The trial court further ruled that it was unwilling to separate L.H. from her older sister because there was clear and convincing evidence that such a separation, when combined with disrupting L.H.'s other relationships and long-term living environment, would cause her emotional harm. Consequently, the trial court granted primary physical...