Phillips v. Phillips

347 Ga.App. 524

820 S.E.2d 158

PHILLIPS

v.PHILLIPS.

A18A1193

Court of Appeals of Georgia.

October 4, 2018

Richard Allen Sanders Jr., Savannah, for Appellant.

Melinda Ivy Phillips, Tifton, for Appellee.

Barnes, Presiding Judge.

Robert Phillips (Husband) and Melinda Phillips (Wife) were married in December 1993, and are the parents of four children. After nearly 20 years of marriage, Husband filed for divorce in June 2013. The trial court conducted a bench trial at which Husband and Wife testified. In July 2015, the court entered a "Final Judgment and Decree" ("final judgment") dissolving the marriage.¹ Among other things, the final judgment granted Wife primary physical custody of the two minor children, ordered Husband to pay child support, and divided real and personal property. Finding fault with aspects of these three rulings, Husband appeals.² For reasons explained below, we affirm in part, vacate in part, and remand the case for proceedings not inconsistent with this opinion.

1. As an initial matter, we note that the appellate record lacks transcripts of certain evidentiary hearings.

In the final judgment, the trial court recounted that temporary hearings had been held in this case on July 12, 2013 and August 9, 2013; and that "[t]he parties stipulated that the evidence presented during the temporary hearing could be considered by the [c]ourt for purposes of determining the final issues in the case, and evidence was received on divorce, child custody, child support, and the division of marital property and debts. The [c]ourt, based on the extensive testimony and documents received," then expressed findings of fact and conclusions of law.

The record before us contains no transcript of such temporary hearings. Indeed, Husband acknowledges in his brief that "the parties have been through multiple hearings. [Husband] understands that not all the hearings were transcribed and therefore are not of use on this Appeal." It is axiomatic that:

"Where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant’s expense." OCGA § 5-6-41 (c) ; see also OCGA § 5-6-42 ("Where there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed as provided by Code Section 5-6-41."). Husband, as the appellant here, bears the burden of showing error below. In accordance with the presumption of the regularity of court proceedings, we must assume in the absence of a transcript that there was sufficient competent evidence to support the trial court’s findings.

(Citation, punctuation, and footnote omitted.) Reed v. Reed , 295 Ga. 574, 577-578 (2), 761 S.E.2d 326 (2014).

Child Custody

2. Husband contends that the trial court erred in awarding Wife primary physical custody of the minor children, arguing that there was no evidence to support that ruling.

When child custody is an issue between parents, the trial court has very broad discretion, looking always to the best interest of the child. When the trial court has exercised that discretion, this court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, this court will not find there was an abuse of discretion.

(Citation and punctuation omitted.) Terrell v. Terrell , 294 Ga. 208, 210, 751 S.E.2d 415 (2013).

Husband cites that he and Wife were living at separate residences during the divorce proceedings, and that the minor children alternated weeks living with each of them. Husband claims there was evidence not only that he was a fit and capable parent, but that he had taken better care of the minor children than had Wife. He complains that the trial court found him "dishonest in his personal affairs" based on Wife’s accusations that he had committed adultery, and asserts that the trial court had no reason to accept Wife’s allegations as true. Husband contends that the trial court erroneously disregarded his evidence showing that it was in the best interest of the minor children that they either live with him as the primary physical custodian or continue alternating weeks living with either parent. Husband posits that, because the court did neither, the custody decision rested upon Wife’s unfounded charges of adultery and the trial judge’s apparent bias against him.

In determining primary physical custody, however,

the trial judge was not limited to evidence that [Husband] believes supported [his] claims. Rather, the trial judge sat as the finder of fact, and the determination of ... [primary] physical custody ... involved resolving evidentiary conflicts and issues of witness credibility. The trial judge was not required to believe the testimony [cited] by the [Husband], nor to reject the evidence adduced by the [Wife].

(Punctuation and footnotes omitted.) Kuehn v. Key , 325 Ga. App. 512, 517 (1), 754 S.E.2d 103 (2014). When reviewing a trial court’s custody ruling, we view the evidence in the light most favorable to the trial court’s decision. See Strickland v. Strickland , 298 Ga. 630, 633-634 (1), 783 S.E.2d 606 (2016). And "due deference must be given to the trial court, acknowledging that it ha[d] the opportunity to judge the credibility of the witnesses." Id.

Here, the final judgment reveals that the trial court carefully weighed the evidence and was guided by a consideration of the best interests of the parties’ minor children. While the court found that both parties were fit and capable of caring for the children, its decision to grant Wife primary physical custody was premised, among other things, on: the ages of the minor children, then 5 and 6 years old (and enrolled in Pre-K and kindergarten); the love, affection, bond, and emotional ties between the minor children and their mother; the love, affection, bond, and emotional ties between the minor children and their oldest sister who lived with Wife; Wife’s capacity to provide the children with food, clothing, medical care, and other basic necessities; and Wife’s demonstrated attentiveness to the minor children’s physical, mental, emotional, and educational needs, as well as their extracurricular activities. The trial court also determined that Husband’s physical and mental impairments limited his capacity to care for the minor children, including his suffering from migraine headaches, chronic back and neck pain, vertigo, and non-epileptic seizures, the latter of which were triggered by Husband’s inability to cope with stress. The court cited that in 2014, Husband suffered a seizure that rendered him unconscious and hospitalized. The court further found that, while Husband’s health conditions were manageable through prescribed medication and behavioral health counseling, Husband had not followed the recommendation of undergoing health counseling. Also, the court found that despite having been directed by a physician not to operate a motor vehicle until he had been free of any seizure for six months, Husband had refused to comply with that recommendation. The court expressed concern with Husband’s driving with the minor children. And the trial court cited the guardian ad litem’s reports and recommendation that Wife be granted primary physical custody.

[W]here the trial court has exercised its discretion and awarded custody of children to one fit parent over the other fit parent, [an appellate court] will not interfere with that decision unless the evidence shows the trial court clearly abused its discretion. Where [as here] there is ... evidence to support the decision of the trial court, [an appellate court] cannot say there was an abuse of discretion.

(Citations omitted.)

McLendon v. McLendon , 297 Ga. 779, 780-781 (3), 778 S.E.2d 213 (2015) (rejecting claim that custody ruling was based solely to punish appellant for an act of adultery, where the record revealed that the trial court had carefully weighed the evidence, had not been motivated merely to punish appellant, and had found the appellant lacking in credibility); LaFont v. Rouviere , 283 Ga. 60, 61-62 (1, 2), 656 S.E.2d 522 (2008) (affirming judgment granting custody to mother, where trial court—after being presented with evidence that, inter alia, child had close bond with mother, mother had served as primary caretaker, and father had engaged in adulterous conduct—based its custody ruling on the child’s best interest).

Furthermore, Husband’s apparent speculation of judicial bias is unavailing. See generally Patel v. State of Ga ., 289 Ga. 479, 486-487 (5), 713 S.E.2d 381 (2011) (holding that for an alleged bias to be disqualifying, it must stem from an extra-judicial source and result in a ruling premised on something other than what the judge learned from his participation in the case); Langton v. Dept. of Corrections , 220 Ga. App. 445, 447 (3), 469 S.E.2d 509 (1996) (concluding that party’s claim of judicial bias was not properly before appellate court, where party failed to raise the issue of judicial bias in the trial court or request recusal).

For the foregoing reasons, Husband has demonstrated no basis to disturb the custody ruling.

Division of Property

3. Husband, who retired from the United States Army on January 27, 2014, contends that the trial court erred by treating his retirement pay as marital property.

In the final judgment, the trial court found that the parties had been married 20 years while Husband was in the military; that during their marriage, Wife had served as the family homemaker and stay-at-home mother, that she had periodically worked in child care, and that she had obtained no education beyond high school. The trial court also found that Husband had retired from the military with a medical discharge, was determined by the Veterans’ Administration to be 100% disabled, and was receiving "monthly retirement benefits in the amount of $4,162." Concluding that...