Marks v. Soles

339 Ga.App. 380

793 S.E.2d 587

MARKS

v.SOLES et al.

A16A0723

Court of Appeals of Georgia.

November 10, 2016

Charles Claude Grile, Pooler, for Appellant.

Jason Soles, Ronnie Bradley Lane, for Appellee.

Branch, Judge.

In March 2013, three children were removed from their mother's custody and placed with their fathers after the children were found living with the mother, Audrea Marks, in filthy conditions. More than a year later, the trial court granted joint legal custody in the first and second of Marks's children to those children's father, appellee Jason Soles, as well as to Marks, with Soles receiving primary physical custody. The trial court also awarded joint legal custody of Marks's third child to that child's father, appellee Brad Lane, as well as to Marks and the child's paternal grandparents, with the paternal grandparents receiving primary physical custody. On appeal from these orders, Marks asserts inter alia that the trial court erred when it awarded joint custody of the third child to its paternal grandparents and when it imposed retroactive child support payments on Marks. We reverse the grant of joint legal and primary physical custody in the third child to the paternal grandparents and the imposition of retroactive child support payments on Marks, vacate the remainder of the trial court's judgment, and remand for further proceedings.

"A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child's best interest." Viskup v. Viskup , 291 Ga. 103, 105 (2), 727 S.E.2d 97 (2012) (citations omitted). "A trial court's decision regarding a change in custody / visitation will be upheld on appeal unless it is shown that the court clearly abused its discretion." Vines v. Vines , 292 Ga. 550, 552 (2), 739 S.E.2d 374 (2013) (citation omitted). "Where there is any evidence to support the trial court's ruling [on custody or visitation], a reviewing court cannot say there was an abuse of discretion." Id.

Thus viewed in favor of the trial court's judgment, the record shows that Marks and Soles had two children, born in June 2000 and March 2003. Marks and Soles were divorced in 2005, and their divorce decree awarded child support from Soles to Marks in the amount of $100 per week. Marks and Lane's child was born in March 2007.

In March 2012, Marks filed a garnishment action against Soles for failure to pay child support. On May 30, 2012, the trial court issued a summons of continuing garnishment to Soles's employer (the garnishee). On August 21, 2012, Soles filed a traverse to the garnishment.

As of October 2012, Marks and Soles had joint legal custody of the first and second children, with the mother having primary physical custody. As of the same date, Marks and Lane had joint legal custody of the third child, with Marks having primary physical custody. On March 9, 2013, Marks was arrested for criminal offenses including cruelty to children, disorderly conduct, and failure to keep animals in sanitary conditions. These charges were filed after officers from the Bulloch County Sheriff's Office, who were called to Marks's home, found the three children at issue living in a home with dog feces throughout, including on the clothes, shoes, and bedding of the children. Rat droppings were found on the kitchen counter, and one of the children told an aunt that she had not eaten anything since her lunch at school the previous day.

On March 11, 2013, the trial court granted Lane's ex parte petition for temporary custody of the third child. On March 19, 2013, the trial court granted Soles's ex parte petition for temporary custody of the first and second children. On April 12, 2013, the trial court entered a temporary order in which it consolidated Marks's garnishment and the fathers' custody modification actions; confirmed its transfer of physical custody of the first and second children to Soles and of the third child to Lane; suspended the child support payments of both fathers; and placed the proceeds of Marks's garnishment action in the court registry.

Marks testified at a hearing held on May 7, 2013,¹ that the filthy conditions in the house from which the children were taken were created by unknown persons who broke in while she and the children were asleep. Marks also testified that after the children were removed from her custody, she moved to Florida, where she lived with Soles's mother while Lane was serving time for methamphetamine possession. The paternal grandmother of the third child testified that she had assisted with care for that child throughout his life and that, while the child had repeated kindergarten while in Marks's custody, he was now excelling in school. After hearing testimony from thirteen witnesses, the trial court continued custody in the fathers, with "assistance from both grandparents"; granted Marks supervised visitation; and ordered counseling for the children.

On August 2, 2013, the trial court denied Marks's motion to dismiss Soles's traverse to the garnishment action. At a hearing on September 10, 2013, Marks testified that she had returned to Georgia, where she was living with her parents; that her father was a convicted child molester; and that she could receive the children for visitation at a house she was planning to rent from her employer. The trial court maintained supervised visitation with Marks and counseling for Marks and the children. The trial court also ordered the parties to submit combined child support worksheets and noted that it was considering awarding Marks up to $12,000 in child support arrears from Soles. On March 27, 2014, the trial court ordered that Soles pay an arrearage of $5000 at the rate of $597 per month. The court also ordered, however, that Marks pay Soles $597 per month and Lane $523 per month in child support, with both awards retroactive to March 1, 2013.²

On September 16, 2014, the paternal grandparents of the third child moved to intervene. Shortly afterward, on October 3, 2014, the trial court held a hearing on Marks's ex parte petition for modification of custody.³ This hearing included appearances from counsel for both fathers and Marks, and with testimony from the children's two counselors, the children's guardian ad litem, the third child's paternal grandmother, and Marks herself. At the outset of the hearing, counsel for Lane noted that whether the court conducted a final hearing or not, "whatever the court decides, it's all going to be the same evidence regardless," and the court agreed that it "[couldn't] imagine the evidence not bleeding over into everything that we're involved with here." Marks made no objection to this characterization.

During the hearing, Marks admitted that her home was undergoing renovation and that she was undergoing medication for her anxiety, which sometimes resulted in panic attacks. Marks also testified that her income had decreased since the filing of her last financial affidavit in September 2013 and that she did not receive regular paychecks from her new job. Marks asserted in closing argument that she was not unfit and that she should receive primary physical custody of all three children. After the conclusion of the witnesses's testimony and argument, the trial court met with all three children in chambers.

On October 14, 2014, the trial court dismissed Marks's garnishment on the ground that any child support Soles had owed her was eliminated by the child support Marks now owed to Soles.

On December 12, 2014, the trial court entered two orders. The first included findings of fact that (1) the cruelty-to-children charges against Marks were still pending; (2) her job had "undefined duties" for an employer who had refused to obey a subpoena; (3) Marks had found a suitable home in Savannah and had done "substantial improvements" on it, but "claims that she has limited funds"; (4) Marks "continues to attempt to manipulate the children by discussing pending litigation and trying to impose guilt on them for her present situation"; (5) the third child was being cared for by his paternal grandparents, an arrangement which had "provided stability for" him; and (6) the counselors and the guardian ad litem had "expressed their belief that the current custody arrangement is beneficial to the children." The Court then concluded "by clear and convincing evidence that custody in [Marks] would be emotionally harmful to the children." Attached to this first order was a parenting plan as to the third child only, which awarded joint legal custody in that child to Marks, Lane, and the child's paternal grandparents, with primary physical custody awarded to the grandparents; a completed child support worksheet establishing presumptive amounts of child support at $354.10 for Marks and $292.90 for Lane; and a child support order addendum finding that Lane had no arrears due and that Marks and Lane were each responsible for $250 a month in child support.

Although the parenting plan, the child support worksheet, and the addendum attached to this first order referred only to the third child, the trial court's second order of December 12, 2014 held that "[t]he parties shall have joint legal custody of the [first and second children], with [their] father being the primary physical custodian." The second order also held that the parenting plan submitted as to the third child "is approved for [the first and second] children and is incorporated herein in its entirety," and that Marks owed Soles $495 in child support "to begin immediately." This order did not refer to or vacate the trial court's March 2014 order imposing retroactive child support payments on Marks.

Marks moved for a new trial and for reconsideration. In an extensive order entered on July 10, 2015, the trial court represented that it had granted the third child's grandparents' motion to intervene "orally" on October 3, 2014.⁴ The court then made findings of fact as to Marks's unfitness for custody and...