Dallow v. Dallow , 299 Ga. 762 ( 2016 )

In the Supreme Court of Georgia
Decided: September 12, 2016
S16A1210. DALLOW v. DALLOW.
NAHMIAS, Justice.
This appeal arises from the appellee mother’s complaint for modification
of the divorce parenting plan for her now-17-year-old child. The appellant
father contends that the trial court erred in denying his motion to dismiss the
modification action, impermissibly modified his visitation rights to require him
to arrange visits with his daughter at times that are mutually agreeable, and
improperly awarded the mother $46,593.05 in attorney fees and costs. Aside
from what we conclude is a scrivener’s mistake in the order awarding attorney
fees, we see no error. Accordingly, we affirm.
1. The pertinent facts and convoluted procedural history of this case
and the related contempt proceedings will take a number of pages to lay out.
(a) Joel A. Dallow (Father) and Mary Ellen Kelly (Mother)
married in August 1994 and had three children together: Cecily, Eric, and the
child at issue in this case, J.D. Father is a musician with the Atlanta Symphony
Orchestra, and Mother is an emergency room nurse at Northside Hospital. In
January 2014, Father filed a complaint for divorce, and Mother answered and
counterclaimed for divorce. The parties entered into a settlement agreement and
prepared an agreed parenting plan, proposed child support worksheet, and
consent child support addendum. On April 23, 2014, the trial court entered a
final judgment and decree of divorce incorporating the parties’ agreements and
proposals. When the decree was entered, Cecily was an adult and in college;
Eric was 17 and about to graduate from high school and go away to college; and
J.D. was 14. The parties were awarded joint legal custody of Eric and J.D., with
Mother given final decision-making authority regarding their non-emergency
healthcare, extracurricular activities, education, and religious upbringing.
Mother was awarded the marital residence, which is in walking distance
of J.D.’s high school. The agreed parenting plan incorporated into the divorce
decree designated Mother as Eric and J.D.’s primary physical custodian. As for
visitation, the plan said:
Due to the fact that Eric will graduate high school in May 2014, and
that [J.D.] is over the age of 14, [Father] will have parenting time at
any time mutually agreeable to [Father] and each minor child. To
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the extent that [Father] and [J.D.] cannot agree to more time, this
Parenting Plan is the minimum time [Father] will have with [her].
[Father] shall have the minimum parenting time each week with
[J.D.]: if he is not working on Sunday, his parenting time starts at
12:00 noon on Sunday, and if he is working, his parenting time
starts at 6:00 p.m. on Sunday continuing until Wednesday morning
to drop [J.D.] off at school, or at 9:00 a.m. when school is not in
session.
There was also a holiday and school break visitation schedule.
The parenting plan acknowledged the logistical challenges inherent in
raising busy teenagers who have extensive time commitments in addition to
school. The parties agreed to “exchange the children at school when possible,”
but “[i]f the children are not in school or exchange at school is not practicable,”
Father was ordered to “pick up the children from [Mother and] . . . drop the
children off with [Mother] at the end of his . . . visitation period.” Under the
heading “Other Parenting Time Provisions/Agreements,” the plan listed several
optional provisions, including the following one that was checked by the parties:
The parties agree that strict compliance with time and schedules set
forth herein will not always be possible and agree to cooperate with
each other in connection therewith. Both parties agree to exercise
the parenting time/visitation schedule as set forth herein so as not
to unreasonably interfere with [J.D.’s] schooling and extracurricular
activities. . . .
The parties did not check the option to require both parents to “consult with
3
each other prior to scheduling any activity that will impact time the other parent
spends with the child(ren).”
(b) In May 2014, Father bought a house three miles from the
marital residence. In June, J.D. threw an unauthorized party at Father’s new
house while he was out of town, which resulted in what Father characterized as
some minimal property damage. Two watches with sentimental value to Father
also went missing, along with an iPhone charger, several pieces of a ratchet set,
and two vegetarian pizzas. J.D.’s conduct damaged her parents’ trust in her.
Mother grounded J.D. for the rest of the summer. Father was very upset. He
demanded that she give him the names of the other children at the party so that
he could call their parents, and when J.D. resisted, he threatened to call the
police on her. This threat greatly disturbed her. Father hounded J.D. to help
him find out who took the missing items; after a few days, the level and
constancy of Father’s anger and yelling at J.D. made her scared to be alone with
him, so on Father’s Day she visited him with her older brother Eric. J.D.
eventually gave Father the other children’s names, and he contacted their
parents. At the end of the summer, Eric moved to North Carolina to start
college.
4
During the summer of 2014, the amount of time that Father requested for
visitation with J.D. was far less than the minimum parenting time specified in
the divorce decree. Nevertheless, towards the end of the summer, Father
reviewed the parenting plan and began threatening J.D. that he would take her
and Mother to court if J.D. did not abide by the minimum visitation schedule.
The atmosphere of mistrust and resentment created by the party and its
aftermath, and Father’s demanding approach in asserting his visitation rights,
made J.D. increasingly reluctant to stay with him. J.D. proposed to Father that
she have visitation with him every other weekend, which would keep her from
having to divide her time between two households during the school week, but
Father rejected her proposal out of hand.
(c) On August 11, 2014, J.D.’s first day of tenth grade, Father
filed, in the divorce action, a pro se petition for contempt against Mother. He
alleged among other things that Mother had denied him visitation with J.D. by
“allow[ing] the minor child to be unavailable for pick up at the designated times
in the Parenting Plan,” by permitting J.D. to make plans during his visitation
time, and by failing to encourage J.D. to stay in touch with him and to keep him
informed about what was going on in her life. Father requested among other
5
things that Mother be jailed, that he be given “make up” visitation time with
J.D., and that the court order that J.D. undergo therapy with a clinical social
worker or psychologist chosen by Father.
In September 2014, the Atlanta Symphony Orchestra locked out its
musicians in a labor dispute that lasted for the next two months, and between the
end of September and the middle of November, Father missed six weeks of
visitation with J.D. Father’s explanation was that he could not exercise any
visitation because he was working various jobs out-of-state.
Meanwhile, on October 3, 2014, Mother filed a complaint for modification
of Father’s visitation rights as a civil action separate from the divorce action in
which Father had filed his contempt petition. Supported by an affidavit by J.D.
expressing her preference not to be forced to visit Father, the modification
complaint alleged that J.D. was never consulted before the divorce about her
wishes concerning visitation, that she found the split-week arrangement to
which the parties had agreed highly objectionable during the school year, and
that the inconvenient arrangement had caused her significant stress and
emotional hardship and had significantly damaged her quality of life. The
complaint requested that the parenting plan be modified so that J.D. would be
6
required to visit Father only on days and times that are mutually agreeable to
both of them.
On November 4, 2014, Father filed a motion to dismiss Mother’s
modification complaint, which he amended five times over the next seven
months. On November 18, Mother, acting through counsel, accepted service of
Father’s contempt petition, and on December 1, she filed her answer, denying
that she had willfully violated the divorce decree. Mother alleged that she had
been and would continue on a daily basis to actively encourage J.D. to see
Father and to keep him informed about what was happening in her life, adding
that she had urged J.D. to work with Father to devise a visitation schedule that
worked for both of them.
On December 3, 2014, Father filed a pro se amendment to his contempt
petition and a motion to modify the parenting plan to increase his minimum
visitation time with J.D. Father alleged that Mother was continuing to interfere
with his visitation time and blamed Mother for creating “a sense of estrangement
and alienation” between him and J.D. Father asked the court to modify the
parenting plan to award him, as “make up” visitation with J.D., “all holidays and
school breaks in 2015, with the exception of Mother’s Day and Christmas Day
7
until 1:00 p.m.,” and double summer vacation time of four weeks. Father also
asked the court to modify the “Other Parenting Time Provisions/Agreements”
section
to require [Mother] to offer [Father] the right of first refusal of
supervision, transportation, or other care and custody of [J.D.] prior
to making any arrangements for the child to be in anyone else’s
care, custody or supervision, regardless of the amount of time; and
. . . by checking the box that requires parents to confer with each
other prior to scheduling any activity that impacts the time the other
parent has with the child, including a specific direction to [Mother]
that she is not permitted to schedule anything for the minor child,
or allow the minor child to schedule anything[,] that conflicts with
[Father’s] court-ordered minimum visitation and parenting time.
In early January 2015, during Father’s first visitation with J.D. after the
holiday school break, he sat her down and read her the 12-page parenting plan
verbatim, which made her cry. J.D. was so upset that she contacted her brother
Eric and asked him to come pick her up. According to Father, J.D.’s attitude
towards him changed after this incident and continually deteriorated after that.
On January 27, 2015, the trial court held a hearing on Father’s amended
contempt petition, at which he was represented by a Virginia attorney appearing
pro hac vice. On February 12, the court entered a final order finding Mother in
contempt in several respects related to the property division provisions of the
8
divorce decree. The court expressly rejected, however, Father’s assertion that
Mother was the source of the disruption of his visitation with J.D. and the
deterioration of their father-daughter relationship, and therefore declined to hold
Mother in contempt on this issue. The court did grant Father’s request to order
Mother to refrain from scheduling any activity for J.D. during Father’s visitation
time and directed Mother to admonish J.D. that any activity scheduled during
that time must be cleared with Father.
(d) On February 16, 2015, J.D. informed Father that she wanted
to stay at home that night and told him by text message not to pick her up after
dance class. Father responded that he was going to pick J.D. up despite her
wishes, so she asked Mother to pick her up early from dance class, which
Mother then did. When Father learned that J.D. had left early, he called the
police and drove to Mother’s house, where he showed the police the parenting
plan giving him visitation with J.D. that evening and then waited in his car while
the police went inside and spoke with Mother and J.D. The police told J.D. that
they would arrest Mother if J.D. did not go with Father, so she went to his house
to spend the night. J.D. was extremely upset at Father for calling the police and
for forcing her to go with him that night against her wishes.
9
Throughout the school year, Father insisted that J.D. ride the bus to school
some mornings during his visitation time even though he was home and
available to drive her. On those mornings, he would not let J.D. ride to school
with a friend, and although he sometimes allowed Mother to pick J.D. up from
his house and drive her to school, at other times he would refuse. Father’s initial
explanation for his periodic refusal to take J.D. to school was that he could not
spare the 30 to 60 minutes it allegedly took him to do so. However, he also said,
“if [J.D.] wants me to go out of my way, she needs to start treating me with
respect.” Father later claimed that having to ride the bus “builds character.” It
infuriated J.D. to be forced to ride the bus to school when Father was available
but unwilling to take her and unwilling to allow her to get a ride to school, but
despite the friction that this issue caused in their relationship, Father would not
relent.
On the morning of March 17, 2015, J.D. had arranged with Mother to pick
her up at Father’s house and take her to school, apparently with Father’s
consent, but J.D. overslept and Mother had to go on to work. When Father
noticed that J.D. was not up, he woke her and told her that she needed to get
ready for the bus. J.D. did not have clean clothes to wear to school and was
10
upset that Mother was already at work and could not pick her up and take her
home to change clothes before school. Father was unmoved and insisted that
J.D. take the bus to school in her dirty clothes, because he had “told [J.D.]
repeatedly, pack what you need for the half week so that you have what you
need for school.”
J.D., crying hysterically, called a friend whose mother then picked her up
from Father’s house, took her home so that she could put on clean clothes, and
then drove her to school. When Father discovered that J.D. did not take the bus,
he assumed that she had caught a ride to school, but he nevertheless contacted
the police and had them call J.D., who was at home changing for school. Father
also contacted the woman who picked J.D. up and threatened legal action
against her if she ever gave J.D. a ride to school from his house again. J.D. was
extremely upset that Father had called the police on her again.
On April 27, 2015, Father filed another contempt petition, alleging among
other things that Mother had interfered with his visitation in various ways. On
May 19, Father filed another contempt petition, this time alleging that Mother
failed to foster his father-daughter relationship with J.D., failed to confer with
him when choosing a therapist for J.D., told J.D. that Father was requiring her
11
to go to therapy, and refused to consent to therapy for J.D. with a parental
alienation specialist chosen by Father. On June 2, Father filed yet another
contempt petition, alleging that Mother instructed J.D. to forward to her a
visitation-related email from Father and failed to turn over to the trial court all
communications between Mother and J.D. as he requested. On June 3, Mother
responded to Father’s contempt motions, denying his allegations and asserting
that he was being uncooperative and unreasonable.
(e) On June 4, 2015, the trial court held a lengthy hearing on
“everything” pending in both the modification of visitation and divorce
contempt cases. Father, Mother, one of Mother’s neighbors, and the woman
who gave J.D. a ride to school on March 17 testified, and the parties introduced
voluminous written communications among Father, Mother, and J.D. It was
undisputed that J.D. hated the forced visitation schedule with Father and that she
actively resisted going to see him. The evidence showed that when J.D. stayed
at Father’s house, she locked herself in her bedroom for the duration of the
forced visits; she refused to eat his food; and when Father put up pictures in her
bedroom of them together when she was younger, she took the pictures down,
explaining to Father that she did not want to look at them. Father denied any
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responsibility for the difficulties in his relationship with J.D. and her desire not
to have forced visitation with him, attributing the problems entirely to Mother’s
alleged efforts to alienate him from J.D. The parties agreed at the hearing to
present closing arguments and motions for attorney fees by briefs, which the
parties then filed on June 15. On July 1, 2015, the trial court entered an order
granting Mother’s complaint for modification of visitation; on July 6, the court
entered an order awarding Mother $46,593.05 in attorney fees; and on July 7,
the court entered an order denying Father’s motion to dismiss Mother’s
complaint.1
In the modification order, the trial court found that J.D. was living “a life
full of stress, anxiety and turmoil” as a result of the inconvenient visitation
arrangement established by the divorce decree. The court noted its opportunity
to observe Father’s demeanor and found that he was “convinced that he could
have a ‘father-daughter relationship’ by force” and was “out of touch with the
depth and severity of his daughter’s anger and resentment.” In the attorney fees
1
On July 1, the trial court also entered an order on Father’s contempt petitions, finding
Mother in contempt in several respects related to visitation, and on July 6, the court entered an order
granting Father $5,732.80 in attorney fees related to his contempt petition resolved by the February
12, 2015 contempt order.
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order, the court rejected Father’s claim that Mother was “systematically
alienating” J.D. from him, finding instead that “Father’s behavior was a huge
contributor” to the breakdown of his relationship with J.D., that he had “wielded
his ‘I’m the boss of you’ father card over the child like a sledge hammer in spite
of his fragile relationship with her,” and that “throughout Father’s testimony, he
was clear that his support, love, attention, guidance and rearing of J.D. and her
siblings would be on his terms and that would be revoked if his children did not
behave exactly as he demands.” The court also found that, despite his
recognition that his relationships with all three of his children were strained,
Father “nonetheless still travel[ed] the path to reconciliation via threats,
numerous court filings, and repeated police involvement.”
The court noted that it had “seriously considered” ordering reunification
therapy for Father and J.D. until “it became obvious” that such a requirement
“would likely be a waste of time and money and a source of more frustration”
given the level of J.D.’s anger towards Father. The court therefore granted
Mother’s request to modify the parenting plan to require J.D. to visit Father only
at times they mutually agree on, thereby eliminating the visitation by “force and
intimidation” that was driving Father and J.D. further and further apart.
14
On the issue of attorney fees, the trial court found that Father “turned a
simple litigation into a complex one” with numerous court filings and abusive
discovery requests and by threatening Mother with criminal prosecution for
misdemeanor interference with child custody and arrest from her job in
connection with a settlement proposal that would have required her to pay his
attorney $55,000. The court ordered Father to pay Mother $46,593.05 in fees,
in monthly increments of $5,000.
On July 28, 2015, Father filed a timely notice of appeal to this Court,
specifying that he was challenging the orders granting Mother’s modification
complaint, awarding Mother attorney fees, and denying his motion to dismiss.2
2. Before we consider Father’s enumerations of error, we address this
Court’s jurisdiction to decide this appeal. See Lay v. State, 289 Ga. 210, 211
2
Father’s notice of appeal directed the trial court clerk to omit from the appellate record “all
portions of the transcribed hearing on January 27, 2015” and “all portions of the hearing on June 4,
2015 after argument of the motions to dismiss . . . up until the few final minutes of the hearing when
attorney’s fees were discussed.” The record on appeal does not contain a transcript of the January
27 hearing, although it contains a full transcript of the June 4 hearing. The notice of appeal, which
Father also filed in his divorce contempt action against Mother, contained the case style and trial
court case number of both his divorce contempt action and Mother’s modification action. Records
in each action were forwarded to this Court, where the two appeals were initially docketed as a single
Case No. S16A1210. On April 21, 2016, this Court entered an order splitting out Father’s appeal
in his contempt action, which was then docketed as Case No. S16A1354, leaving this appeal from
the modification action as Case No. S16A1210. Oral argument was held on July 11, 2016.
15
(710 SE2d 141) (2011) (“‘[I]t is the duty of this Court to inquire into its
jurisdiction in any case in which there may be a doubt about the existence of
such jurisdiction.’” (citation omitted)). Under the current scheme of appellate
court jurisdiction, this Court has subject matter jurisdiction over appeals in “[a]ll
divorce and alimony cases.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (6).
An appeal from any judgment other than a final judgment and decree of divorce
that involves only issues of child custody (including visitation rights) falls
within the jurisdiction of the Court of Appeals. See Carter v. Foster, 247 Ga.
26, 26 (273 SE2d 614) (1981); Munday v. Munday, 243 Ga. 863, 864 (257
SE2d 282) (1979).
However, an award of attorney fees under OCGA § 19-6-2 is an “intrinsic
part of temporary alimony,” as its purpose is to enable the recipient party to
contest all issues in the pending action for alimony, divorce and alimony, or
contempt of court arising out of an alimony or a divorce and alimony case.
Scott v. Scott, 251 Ga. 619, 620 (308 SE2d 177) (1983). Thus, an appeal
challenging an award of attorney fees under § 19-6-2 qualifies as a “divorce and
alimony case[]” that falls within this Court’s current subject matter jurisdiction.
See Tucker v. Tucker, 164 Ga. App. 477, 477 (298 SE2d 159) (1982) (physical
16
precedent only). See also, e.g., Haim v. Haim, 251 Ga. 618, 618 (308 SE2d
179) (1983). Although we ultimately agree with Mother’s argument that the
trial court’s reference to § 19-6-2 was a mere scrivener’s error and that the court
actually based the award on OCGA § 9-15-14, see Division 5 below, that
argument goes to the merits of Father’s claim and does not alter our
jurisdictional analysis. Accordingly, this appeal invokes – if only barely – this
Court’s subject matter jurisdiction.
We note, however, that during this year’s legislative session, the General
Assembly passed, and the Governor then signed into law, the Appellate
Jurisdiction Reform Act of 2016, Ga. L. 2016, p. 883, which gives the Court of
Appeals subject matter jurisdiction over “[a]ll divorce and alimony cases” in
which a notice of appeal or application to appeal is filed on or after January 1,
2017. Id. § 3-1 (codified at OCGA § 15-3-3.1 (a) (5)). Thus, appeals in future
cases of this sort will go to the Court of Appeals instead of this Court. See
Williford v. Brown, 299 Ga. 15, 16-17 & n.1 (785 SE2d 864) (2016)
(recognizing that the need for Georgia’s appellate courts and litigants to engage
in many intricate jurisdictional analyses of this sort will soon begin to dissipate).
We can now turn to Father’s enumerations.
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3. Father contends first that OCGA §§ 19-9-23 and 19-9-24 required
the trial court to dismiss Mother’s October 2014 complaint for modification of
his visitation rights. We disagree.3
(a) In 1977, this Court noted its concern about
the number of cases in which children are illegally seized or
illegally detained at the end of visitation periods by their
noncustodial parents, as well as those where a parent is personally
served with a petition when he arrives to return his children home,
as in this case. We believe that by denying these parents a
convenient forum in which to relitigate custody, these practices may
be reduced or stopped altogether. It is thus in the public interest to
discourage such conduct without any prejudice whatsoever to the
noncustodial parent’s right to bring such a petition where the legal
custodian, and the children, reside.
Matthews v. Matthews, 238 Ga. 201, 203 (232 SE2d 76) (1977). The following
year, the General Assembly responded to this problem by enacting the Georgia
Child Custody Intrastate Jurisdiction Act of 1978, Ga. L. 1978, p. 1957
(“CCIJA”), and Georgia’s version of the Uniform Child Custody Jurisdiction
Act, Ga. L. 1978, p. 258 (“UCCJA”). See Sweeney v. Sweeney, 241 Ga. 372,
3
Father also contends that the trial court erred in denying his motion to dismiss because
Mother “did not timely oppose” the motion. Father cites no authority in support of this contention.
In fact, there is no requirement that a motion to dismiss be granted, without regard to its merits,
simply because no response was filed. See Cogland v. Hosp. Auth. of Bainbridge, 290 Ga. App. 73,
76 (658 SE2d 769) (2008) (“‘[T]here is no such thing as a default judgment on the pleadings.’”
(citation omitted)).
18
374-375 (245 SE2d 648) (1978) (plurality opinion). The CCIJA is codified at
OCGA §§ 19-9-20 to 19-9-24.4
(b) We first consider OCGA § 19-9-23.5 Subsection (a) requires
that any complaint seeking to change which parent has the majority of parenting
time must be brought as a separate action in that primary physical custodian’s
county of residence.6 Subsection (b) requires that any complaint by the primary
4
In 2001, the General Assembly replaced the UCCJA with Georgia’s version of the Uniform
Child Custody Jurisdiction and Enforcement Act or UCCJEA, Ga. L. 2001, p. 129 (codified at
OCGA §§ 19-9-40 to 19-9-104).
5
OCGA § 19-9-23 says in full:
(a) Except as otherwise provided in this Code section, after a court has
determined who is to be the legal custodian of a child, any complaint seeking
to obtain a change of legal custody of the child shall be brought as a separate
action in the county of residence of the legal custodian of the child.
(b) A complaint by the legal custodian seeking a change of legal custody or
visitation rights shall be brought as a separate action in compliance with
Article VI, Section II, Paragraph VI of the Constitution of this state.
(c) No complaint specified in subsection (a) or (b) of this Code section shall be
made:
(1) As a counterclaim or in any other manner in response to a petition for
a writ of habeas corpus seeking to enforce a child custody order; or
(2) In response to any other action or motion seeking to enforce a child
custody order.
(d) The use of a complaint in the nature of habeas corpus seeking a change of
child custody is prohibited.
6
The term “legal custodian” as used in the CCIJA means, “[w]here custody of a child is
shared by two or more persons or where the time of visitation exceeds the time of custody, that
person who has the majority of time of custody or visitation.” OCGA § 19-9-22 (2). To avoid
confusion with the term “legal custodian” as used in other areas of family law, we will refer to the
CCIJA legal custodian as the “primary physical custodian.”
19
physical custodian seeking a change in custody or a change of the other parent’s
visitation rights also must be brought as a separate action, but in the other
parent’s county of residence. Subsections (c) and (d) then prevent litigants from
evading the pleading and venue strictures of subsections (a) and (b) through the
procedures for habeas corpus, see OCGA §§ 9-14-1 to 9-14-23, or by invoking
provisions of the Civil Practice Act that allow or require aggregation of claims
involving the same parties or general subject matter, see, e.g., OCGA § 9-11-13
(counterclaims).
Father relies on § 19-9-23 (c) (2), which prohibits a complaint seeking to
obtain a change of visitation rights from being made “[i]n response to any [non-
habeas corpus] action or motion seeking to enforce a child custody order.”
Pointing to the contempt petition that he filed in the divorce action in August
2014, seeking to enforce the parties’ child custody order – in particular, the
minimum visitation schedule in the parenting plan – Father argues that Mother’s
complaint for modification of his visitation rights, which she filed two months
later, was impermissibly made “[i]n response to” his contempt action. Mother’s
modification complaint may have been prompted, at least in part, by Father’s
filing of his contempt petition against her, but OCGA § 19-9-23 is not
20
concerned with the motivations behind the proceedings it addresses.
Rather, the statute regulates how and where complaints to change custody
(and visitation) may be pursued, and Mother did not file her modification action
as a responsive pleading or counterclaim in Father’s divorce contempt action.
Instead, she did exactly what § 19-9-23 (b) required her to do to obtain
modification of Father’s visitation rights: she filed a “complaint . . . seeking a
change of . . . [his] visitation rights . . . as a separate action” in Father’s county
of residence “in compliance with Article VI, Section II, Paragraph VI of the
Constitution,” which generally requires civil cases to be venued “in the county
where the defendant resides.” See Jones v. Jones, 256 Ga. 742, 743 (352 SE2d
754) (1987) (“The custodial parent, in this case the mother, sought to have the
father’s visitation rights modified and brought a separate action in the county of
residence of the father, the noncustodial parent. This was proper under OCGA
§ 19-9-23 (a).”7); Alberti v. Alberti, 320 Ga. App. 724, 728 (741 SE2d 179)
(2013) (holding that a father’s petition to change custody was not barred by
§ 19-9-23 (c) (1) even though it was “predicated on the [m]other’s successful
7
While Jones refers to § 19-9-23 (a), the mother in that case was clearly the primary
physical custodian, so the reference should have been to subsection (b). Like trial courts, see
Division 5 below, this Court makes the occasional scrivener’s error.
21
petition for habeas corpus,” because it was properly filed as a separate action in
the mother’s county of residence).
Indeed, not long after the CCIJA was enacted, this Court encouraged
parents to follow the course that Mother pursued in order to obtain a change of
primary physical custody or visitation rights following efforts by the other
parent to enforce the existing child custody order. See Hutto v. Hutto, 250 Ga.
116, 118 (296 SE2d 549) (1982) (explaining that a father with visitation rights
who was prevented by what is now § 19-9-23 (c) (1) from filing a counterclaim
seeking a change of custody in response to the mother’s petition for habeas
corpus filed in father’s county of residence was not without recourse, as he
could file a separate complaint seeking a change of custody in the mother’s
county of residence). In short, OCGA § 19-9-23 governs how and where an
action seeking a change of primary physical custody or visitation rights must be
filed, not whether such an action can be filed at all when a child custody
enforcement action by the other parent is pending. Thus, § 19-9-23 did not
require the trial court to grant Father’s motion to dismiss.
22
(c) We turn next to OCGA § 19-9-24.8 Father relies on
subsection (b), which says that the primary physical custodian shall not be
allowed to “maintain” a civil action for, among other things, change of visitation
rights for “so long as visitation rights are withheld in violation of the custody
order.” (Emphasis added.) Subsection (a) contains a reciprocal bar preventing
a parent with visitation rights from maintaining a civil action for change of
custody for “so long as custody of the child is withheld from [the primary
physical custodian] in violation of the custody order.” See Hutto, 250 Ga. at
117 (holding that it was error to allow a father to maintain an action for change
of custody “even though he was withholding custody of the child from the
mother . . . in violation of the custody order”).
In his brief to this Court, Father asserts that the trial court found that
8
OCGA § 19-9-24 says in full:
(a) A physical custodian shall not be allowed to maintain against the legal
custodian any action for divorce, alimony, child custody, change of alimony,
change of child custody, or change of visitation rights or any application for
contempt of court so long as custody of the child is withheld from the legal
custodian in violation of the custody order.
(b) A legal custodian shall not be allowed to maintain any action for divorce,
alimony, child custody, change of alimony, change of child custody, or
change of visitation rights or any application for contempt of court so long as
visitation rights are withheld in violation of the custody order.
23
Mother had “withheld visitation,” referring to the court’s February 12 and July
1, 2015 contempt orders. That is not true. In its February 12 contempt order,
the trial court specifically declined to find that Mother violated the divorce
decree with respect to Father’s visitation with J.D. And in its July 1 contempt
order, the court found that Mother violated the divorce decree by interfering
with Father’s visitation on a few occasions, not that she was withholding
visitation from him altogether. Father’s not receiving his full scheduled
visitation on a particular occasion does not equate to a finding that Mother was
affirmatively precluding him from visitation with J.D. Indeed, Mother testified
at the June 4, 2015 hearing that she had never withheld visitation from Father
and offered text messages from J.D. stating that Mother did not prevent any
visits with Father, and the trial court was entitled to credit that evidence.
Compare Avren v. Garten, 289 Ga. 186, 187 (710 SE2d 130) (2011).9 Thus, the
trial court also did not err in declining to dismiss Mother’s modification
9
We have some doubt about our indication in Avren that past instances of withholding,
rather than withholding of custody or visitation at the time that the trial court is deciding how to
proceed in the newly filed action, would bar the new action under OCGA § 19-9-24 (b). But we
need not resolve that issue to decide this case, as the record evidence here is factually quite distinct
from the record in Avren, where the evidence showed that the father’s scheduled visitation with a
child under age 14 had not taken place on over 100 dates in an eight-month period, the mother
admitted impeding visitation, and “the trial court found at the hearing that [the mother] had withheld
visitation.” Avren, 289 Ga. at 187.
24
complaint pursuant to OCGA § 19-9-24 (b).
4. Father claims that the trial court erred in modifying his visitation
rights to require him to arrange visitation with J.D. at times that are mutually
agreeable. In a dispute between two fit parents,
“[a] trial court faced with a petition for modification of child
custody is charged with exercising its discretion to determine what
is in the children’s best interest. 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. Where there is
any evidence to support the trial court’s ruling, a reviewing court
cannot say there was an abuse of discretion.”
Coppedge v. Coppedge, 298 Ga. 494, 499 (783 SE2d 94) (2016) (citation
omitted).
Father first seeks to avoid this daunting standard of appellate review by
demanding a do-over in the trial court, claiming that his due process rights were
violated because “there was no trial on [Mother’s complaint] for modification.”
This claim is belied by the record. On June 4, 2015, the trial court held an
evidentiary hearing on “everything” pending in both the modification and
contempt cases, which included Mother’s October 2014 complaint for
modification of Father’s visitation rights; the court had sent counsel for both
parties an email, listing both the modification and contempt case numbers, “to
25
confirm that the final trial in both of these cases has been specially set for June
4, 2015,” and Father referenced the June 4 trial date in both his pre-hearing and
post-hearing filings in the modification action. Moreover, at the hearing the
parties presented not only evidence on the specific contempt claims that Father
had raised but also extensive evidence on the need for modification of the
existing parenting plan, including the testimony of both parties and voluminous
written communications among Father, Mother, and J.D.
Turning to the merits of the modification ruling, Father contends that the
trial court failed to consider whether modification was in J.D.’s best interests
and whether some remedy other than requiring Father to arrange visitation with
his then-almost-16-year-old daughter at mutually convenient times would be
more appropriate. In particular, Father points to his request for mandatory
reunification therapy with J.D., but the court explained in its order that it
“seriously considered” that request until “it became obvious to the Court that,
given the level of J.D.’s anger, this would likely be a waste of time and money
and a source of more frustration.” Father disputes the trial court’s factual
findings and asserts – with no apparent basis other than his displeasure with the
court’s ruling – that “the court ignored evidence” in his favor that was presented
26
at the hearing.
Father claims that the “court found [Mother] engaged in an incessant
pattern of contemptuous interference with visitation even after the court told her
to stop.” In reality, while recognizing that Mother is “not without fault,” the
court found that the acts she had committed in contempt of the court’s orders
were done “in order to assist the child in navigating this difficult situation [with
Father]” and that she “has been trying unsuccessfully to find ways to support a
troubled child while at the same time avoiding contempt of the Court’s Orders.”
Father also repeatedly mischaracterizes the trial court’s ruling that he must
arrange his visitation with his now-17-year-old daughter at mutually convenient
times as a “termination of [his] parenting time.” Instead, Father may actually
spend more time with J.D. than he did under the previous plan – if he treats her
with sufficient respect and kindness that she is willing to be with him and
thereby alleviates what the court “sadly” found to be J.D.’s “significant stress
and emotional hardship resulting from the [previous] inconvenient visitation
arrangement.” The record shows that the trial court did not seek to end J.D.’s
relationship with her father, but rather to rejuvenate it by modifying a visitation
scheme that the court found J.D. perceived to be based on Father’s “force and
27
intimidation.”
Ample evidence supported the court’s modification of Father’s visitation
rights to change his time with J.D. to mutually agreed dates and times. See
Andersen v. Farrington, 291 Ga. 775, 777 (731 SE2d 351) (2012) (recognizing
the discretion of a trial court to “impose reasonable restrictions upon visitation
as the circumstances may require,” including preconditions to exercising
visitation). Indeed, the modified visitation arrangement as to J.D. is the same
“mutually agreeable” times arrangement to which Father agreed in the original
parenting plan as to her brother Eric when he was about J.D.’s current age. See
Doritis v. Doritis, 294 Ga. 421, 425 (754 SE2d 53) (2014) (upholding a trial
court’s exercise of discretion in determining that compelled counseling or
visitation with a father would not be in the best interests of his 17-year-old
child).
Finally, while the trial court’s order does not use the term “best interests
of the child,” OCGA § 19-9-3 (a) (3), (5), there is no indication in the record
that the trial judge – who has extensive experience with child custody matters
– applied any other standard. Indeed, the court’s order is squarely focused on
what visitation arrangement is in J.D.’s – rather than her Father’s – best
28
interests. See Davis v. Bushnell, 245 Ga. App. 221, 223 (537 SE2d 477) (2000)
(“‘In the absence of a contrary showing, the trial court will be presumed to have
followed the law.’” (citation omitted)).
5. Father contends that the trial court denied him due process in
awarding Mother attorney fees in the July 6, 2015 order because the award was
made under an inapplicable statute. The three-page order said in conclusion,
“Pursuant to OCGA Sec. 19-6-2, the Court hereby awards fees to the Mother for
this modification action in the amount of $46,593.05.” As Father correctly
points out, this award was not proper under the statute cited, because OCGA
§ 19-6-2 authorizes an award of attorney fees only in an “action . . . for alimony,
divorce and alimony, or contempt of court arising out of either an alimony case
or a divorce and alimony case, including but not limited to contempt of court
orders involving property division, child custody, and child visitation rights.”
OCGA § 19-6-2 (a). Mother’s separate action to modify Father’s visitation
rights was not such a proceeding. Mother concedes this point, but she argues
that the award should be affirmed because the trial court clearly meant to make
the award pursuant to OCGA § 9-15-14 (b) and the reference in the order to
§ 19-6-2 was just a scrivener’s error. We agree.
29
OCGA § 9-15-14 (b) authorizes the assessment of “reasonable and
necessary” attorney fees and litigation costs in civil cases against a party that has
“unnecessarily expanded the proceeding by . . . improper conduct, including . . .
abuses of discovery procedures.” Mother requested an award pursuant to
OCGA § 9-15-14 (b) in multiple court filings in her modification case, including
her post-hearing brief on attorney fees; she did not request fees under § 19-6-2.
Furthermore, the order making the award contained findings that one would
expect to see in an award made pursuant to § 9-15-14 (b). Specifically, the trial
court found that Father “turned a simple litigation into a complex one” by,
among other things, filing five motions to dismiss Mother’s complaint for
modification; sending Mother 517 requests to admit in this case and Father’s
divorce contempt case; requesting the appointment of a guardian ad litem six
weeks before the trial was scheduled to start; threatening Mother with
prosecution for criminal interference with custody and with arrest from her job;
and making these threats in connection with a settlement proposal that would
have required Mother to pay Father’s lawyer $55,000.
Thus, while the trial court erroneously cited OCGA § 19-6-2, this clerical
error does not require reversal of the attorney fees award. See Williams v.
30
Becker, 294 Ga. 411, 413 n.1 (754 SE2d 11) (2014) (rejecting the argument that
reversal was required where the trial court purported to award attorney fees
pursuant to “OCGA § 19-15-14” – a nonexistent statute – because a review of
the record, including the trial court’s order, showed that “the reference to OCGA
§ 19-15-14 was a scrivener’s error” and that “the court clearly meant to cite
OCGA § 9-15-14”). See also Viskup v. Viskup, 291 Ga. 103, 106 (727 SE2d
97) (2012) (explaining that this Court may review the record to determine the
statutory basis of an attorney fees order).
Father also asserts that his due process rights were violated because the
award was made without a written motion, without a hearing, and without any
supporting evidence. However, the record shows that Mother repeatedly asked
the trial court in written filings for an order awarding her attorney fees under
OCGA § 9-15-14 and also made an oral request for fees at the June 4, 2015
hearing. See OCGA § 9-11-7 (b) (describing a “motion” as an “application to
the court for an order . . . which, unless made during a hearing or trial, shall be
made in writing”). And at the end of that hearing, during a discussion of the
parties’ dueling requests for attorney fees, the court asked: “The first question
is, are we waiving a fee hearing? If not, we might as well go ahead and set that
31
and then if you want to do your closings on brief – I don’t really care how you
want to do it.” Father’s counsel replied, “I prefer closing on brief. . . . We’ll do
[a] brief on fees as well,” and Mother’s counsel said, “I’m fine with that.” The
parties then submitted briefs that included their arguments on the fees requests,
and Mother’s brief attached an affidavit by her attorney showing the attorney
fees that Mother incurred supported by detailed billing records and asserting
their reasonableness.10 The court referenced those submissions in its fees order.
We see no error. See Ellis v. Caldwell, 290 Ga. 336, 340 (720 SE2d 628)
(2012) (“[A] party may waive an evidentiary hearing on a motion for attorney
fees.”). See also Windham v. Araya, 286 Ga. 501, 503-504 (690 SE2d 168)
(2010) (recognizing that even an untimely affidavit may provide sufficient proof
to support an award of attorney fees as long as the opposing party had an
opportunity to respond before the order awarding fees was entered).
6. On July 7, 2016, more than two months after Father filed his initial
brief on April 20, raising the enumerations of error addressed above, he filed a
“Replacement Brief” attempting to raise three additional enumerations of error.
10
Father’s counsel also submitted an affidavit regarding her fees, but as a separate
document.
32
Remarkably, Father filed this brief on the Thursday before the oral argument on
Monday, July 11, and he did so despite this Court’s entry of an order on July 5
denying the request he made earlier that day for permission to file a
supplemental brief. This Court’s rules require an appellant’s brief to be filed
within 20 days after the case is docketed, unless the Court grants an extension
of time (which Father did not seek), and enumerations of error must be filed as
a part of that brief. See Supreme Court Rules 10 and 19. See also OCGA § 5-6-
40. Rule 24 permits the filing of a supplemental brief if a party is not seeking
only to circumvent the page limits of Rule 20, but Rule 24 “is not a means by
which a party may circumvent the requirement that enumerations of error be
timely submitted.” Willis v. Willis, 288 Ga. 577, 582 (707 SE2d 344) (2011).
Accordingly, we will not consider the additional enumerations of error first
raised by Father in his “Replacement Brief.” See id.
Judgment affirmed. All the Justices concur.
33