Shotwell v. Filip

12 FCDR 533

314 Ga.App. 93

722 S.E.2d 906

SHOTWELL

v.FILIP.Filip

v.Filip.

Nos. A11A1728

A11A1729.

Court of Appeals of Georgia.

Feb. 13, 2012.

Adrian Lopez Patrick, for appellant.

Eric Drew Dell, Curtis Joel Dickinson, Woodstock, for appellee.

BARNES, Presiding Judge.

In these companion appeals, the biological mother and the maternal grandmother of the minor child J.F. appeal the trial court's order modifying a previous custody award and granting primary physical custody of the child to the biological father. Discerning no abuse of discretion by the trial court, we affirm.

On appeal from a child custody decision, we view the evidence in the light most favorable to upholding the trial court's order. Lynch v. Horton, 302 Ga.App. 597, 692 S.E.2d 34 (2010). So viewed, the record shows that the biological parents of J.F. married in August 1998 and resided in Georgia. J.F. was born on November 11, 2000, and he lived with both parents until their separation in March 2002, when he began living solely with his mother.

The parents divorced in July 2002. Under the parties' settlement agreement incorporated into the final judgment and decree, the parents were granted joint legal custody of J.F., while the mother was granted primary physical custody. The father was granted weekend visitation with the child. The settlement agreement also provided that each parent was “entitled to complete, detailed information from any teacher or school giving instruction to the child ... and [was] to be furnished with copies of all reports given by them to the other parent.” It further provided that each parent was “entitled to complete detailed information from any pediatrician, general physician, dentist, consultant, or other specialist attending the child, for any reason whatsoever, and [was] to be furnished with copies of reports given by the latter, or any of them, to the other parent.” Similarly, each parent was to “promptly notify the other in the event of any illness, accident, or other matter seriously affecting the child.”

In April 2004, the mother moved to Oklahoma for work-related reasons and leased a small apartment. When she moved, the mother left J.F. in the care and custody of the maternal grandmother in Missouri, whose home was about five hours away from the mother's new home in Oklahoma. The mother assured the father that the child would come and live with her once she got settled in Oklahoma. Following the mother's decision to move, the father continued to reside in Georgia but visited J.F. in Missouri as his job permitted.

In 2005, the mother purchased a home in Missouri with the intention of moving there, securing employment, and having J.F. live with her. In August of that same year, the father filed a petition for contempt against the mother, contending that she had interfered with his visitation rights by moving J.F. to a different state. However, the petition was dismissed after the parties entered into a consent order in 2006 modifying the father's visitation rights. Under the modified visitation schedule, the father was awarded yearly visitation in the form of monthly and quarterly visits with the child, plus four weeks of extended visitation in July and one week in December. The father routinely exercised his visitation rights under the consent order, except for the monthly weekend visits, which were not feasible because of his work schedule and financial considerations.

The mother ultimately was unable to secure a new job in Missouri and instead continued to live in Oklahoma. Although the mother had assured the father that J.F. ultimately would live with her, the child continued to reside with his grandmother. Each year, unbeknownst to the father, the mother executed a power of attorney in loco parentis in favor of the grandmother, giving the grandmother temporary physical custody and control over J.F. The grandmother served as the day-to-day caregiver for J.F., with the mother visiting the child about three weekends per month and on holidays. The grandmother was involved in and took responsibility for J.F.'s medical appointments, schooling, and extracurricular sports activities. Although the father paid child support to the mother, the mother did not pay any set amount to the grandmother for J.F.'s expenses, and she told the father to communicate solely with the grandmother regarding the child and visitation issues. The mother also told the father to use the grandmother's address in Missouri as the contact address for any correspondence associated with the child.

Once J.F. started school in 2006, neither the mother nor the grandmother provided the father with any of his report cards or other student records. Consequently, in August 2007, the father called J.F.'s school and asked for the school to send him copies of the child's report cards. Upon learning that the father had made direct contact with J.F.'s school, the grandmother became upset and indicated to the father that he should have asked her for the school records. Thereafter, the situation between the father and the grandmother “took a turn for the worse,” and she began limiting some of the father's visitation with the child, while as before she had been “working with [him] better as far as the visits.”

In addition to limiting some of his visitation, the mother and the grandmother enrolled J.F. in summer school without the knowledge of the father; failed to provide the father with the child's medical records or timely include the father's name on the requisite federal forms so that he could have direct access to the records; and failed to discuss with the father the decision to have braces put on J.F.'s teeth. The mother and the grandmother also failed to inform or discuss with the father the fact that J.F. was to be enrolled in therapy to address issues he was having with anxiety.

Despite the mother's assurances, J.F. never came to live with her, and in October 2009, the father filed a petition for change of custody and child support, contending that there had been a material change in condition affecting the welfare of the child. Among other things, the father alleged that the mother had voluntarily surrendered custody of the child to the grandmother by living in a different state from the child for the past several years; that his visitation rights had been improperly limited following the 2007 school records incident; and that the mother and the grandmother exhibited an ongoing pattern of excluding him from major decisions regarding the child. The mother answered, denying that there had been a material change in condition or that the best interest of the child would be served by transferring primary physical custody to the father. Additionally, the grandmother filed a motion to intervene in the action to oppose the father's petition, and the trial court granted her motion.

Following an evidentiary hearing, the trial court granted the father's petition and awarded him primary physical custody of J.F., with visitation rights afforded to the mother and the grandmother. The trial court also ordered the mother to pay child support to the father. In justifying the transfer in custody, the trial court found that there had been a material change in condition because, among other things, the mother had voluntarily surrendered her right of physical custody and control over J.F. to the grandmother, the father's visits with the child had been limited by the grandmother following the 2007 school records incident, and the father had not been included in or provided with information regarding major decisions affecting the child. The court further found that it would be in the best interest of the child for primary physical custody to be transferred to the father, given that the mother had abdicated her role as a parent to the grandmother. The mother and the grandmother now appeal from the trial court's ruling.¹

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. If the record contains any reasonable evidence to support the trial judge's decision on a petition to change custody, it will be affirmed on appeal.(Footnote omitted.) In the Interest of T.S., 300 Ga.App. 788, 790(2), 686 S.E.2d 402 (2009). In evaluating the record, “we are mindful that the Solomonic task of assigning the custody of children lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” (Citation and punctuation omitted.) Lynch, 302 Ga.App. at 601(4), 692 S.E.2d 34. Guided by these principles, we turn to the contentions in this appeal.

1. Material Change in Condition. The mother and the grandmother contend that the trial court abused its discretion in awarding custody of J.F. to the father because the evidence failed to show a material change in condition affecting the child's welfare since the time of the “last custody award” entered in this case. They maintain that the “last custody award” was the 2006 consent order modifying the father's visitation, and they assert that there has been no material change in condition since that time, given that the mother had already moved to Oklahoma and left the child with the grandmother in Missouri when the consent order was entered.

We are unpersuaded by the mother and the grandmother's contention, even if we assume for the sake of argument that the material change in condition had to arise after the entry of the 2006 consent order, which was entered in the context of a separate contempt action and only modified the father's visitation rights. Under Georgia law, the voluntary surrender of physical custody over a child by the custodial parent can constitute a...