Odum v. Russell , 342 Ga. App. 390 ( 2017 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 20, 2017
In the Court of Appeals of Georgia
A17A0477. ODUM v. RUSSELL.
BARNES, Presiding Judge.
Steven Douglas Odum appeals from several orders of the trial court, including
an order denying his petition to modify custody and motion for contempt, an order
awarding his ex-wife attorney fees and litigation expenses, and an order dismissing
his initial notice of appeal. Following our review, we reverse the provisions in the
final order modifying child custody. We affirm the trial court’s award of attorney fees
under OCGA § 19-6-2, but we vacate the trial court’s award of fees under OCGA §
19-9-3 and remand for further proceedings consistent with this opinion. We also find
that Odum’s present appeal renders moot the order dismissing his initial notice of
appeal.
Odum and Peggy Ann Russell were married in April of 2004, and divorced in
July of 2008, and the original divorce decree granted them joint legal and physical
custody of their minor child, who was two years old at the time of the divorce. The
divorce decree further granted the parents, among other things, physical custody of
the child on an alternating week-by-week basis, gave Odum final decision-making
over the child’s education, gave Russell final decision-making over the child’s health-
related issues, and gave both parents shared decision-making authority over the
child’s extracurricular activities.
On February 10, 2014, Odum filed a petition to modify custody and child
support and a motion for contempt. Odum alleged that a change in legal and physical
custody of the child was warranted and in the child’s best interest based on changes
in material circumstances, including that Russell had failed and refused to comply
with certain terms and provisions of the divorce decree, did not consult with Odum
about the child’s health and other issues, provided false and misleading information
relating to the child, exhibited poor judgment in disciplining the child, and failed to
properly supervise the child.
Russell filed her answer and a counterclaim, in which she alleged material
changes in circumstances necessitating that she be granted final decision-making
authority in “all matters relating to the minor child after consultation with [Odum],”
requested that the summer custody/visitation be modified, and requested that child
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support be increased to reflect the substantial increase in Odum’s income. She also
requested that she be awarded attorney fees and litigation expenses.
Following a hearing, and upon finding no “material change in circumstances
that would authorize a change in custody or a reduction in the Mother’s parenting
time,” the trial court entered an order on January 13, 2016, denying the petition to
modify custody and directing that “the custody arrangements will remain the same
with the parties retaining joint legal and joint physical custody.” The trial court found,
however, that “parenting issues in the original divorce agreement need adjusting in
the best interest of [the child].”
While finding no material change in circumstances, the trial court modified
several parenting provisions of the original decree, including changing the final
decision-making authority about education from the father to the mother, changing
the decision-making about extracurricular activities from joint to the father, and
deleting a week of the father’s custody during the summer. The order further provided
that the child was to “remain in the current school district so long as the mother lives
within the district, and . . . stay in the current school through her current fourth (4th)
grade and through fifth (5th) grade, at which time she is to attend middle school, then
high school in the same district.”
3
The trial court did find a substantial increase in Odum’s income since the final
judgment and, adopting Russell’s child support worksheet referenced in her
counterclaim, increased Odum’s monthly child support.1 The court found that Russell
was not in contempt for violating the divorce decree, and ordered that the parties
undergo co-parenting counseling. The trial court directed Russell to submit her
request for litigation expenses and attorney fees within 30 days of the entry of the
order.
On February 11, 2016, Russell filed her application for attorney fees and
litigation expenses, and on February 12, 2016, Odum filed a timely notice of appeal
from the order denying his petition to modify custody. Subsequently, on February 23,
2016, Russell filed a motion to dismiss the notice of appeal, alleging that the order
was not final because the motion for attorney fees and litigation expenses was
pending, and thus that Odum had to bring the appeal by application. Russell also
sought attorney fees for having to respond to Odum’s notice of appeal.
On March 14, 2016, Odum filed a response to Russell’s February 11 request
for attorney fees and litigation expenses, and on March 29, 2016, filed a response to
1
Odum does not challenge the trial court’s finding as to the increase in child
support payments in this appeal.
4
her motion to dismiss his notice of appeal. Following a hearing on the motions , the
trial court entered an order on March 31, 2016, granting Russell’s motion to dismiss
Odum’s notice of appeal, and, on June 14, 2016, entered an order granting her an
award of attorney fees and litigation expenses. Odum now appeals the January 13
final order, the March 31 order dismissing his notice of appeal, and the June 14 order
awarding Russell attorney fees and litigation expenses.
1. Odum first contends that the trial court erred in modifying child custody
because the trial court found there were no material changes in circumstances. We
agree.
Once an award of child custody has been made, to change that arrangement, the
trial court must determine whether there has been a material change in circumstances
affecting the welfare of the child since the last custody award. Viskup v. Viskup, 291
Ga. 103, 105 (2) (727 SE2d 97) (2012). If so, the trial court then determines whether
the child’s best interests will be served by a change in custody. Todd v. Casciano, 256
Ga. App. 631, 632-633 (1) (569 SE2d 566) (2002). This Court will not interfere with
a trial court’s decision “unless the evidence shows a clear abuse of discretion, and
where there is any evidence to support the trial court’s finding, [we] will not find
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there was an abuse of discretion.” (Citation omitted.) Autrey v. Autrey, 288 Ga. 283,
285 (4) (702 SE2d 878) (2010). However,
there is no precedent which would allow a trial court, absent a change
in conditions affecting the welfare of the child, to modify custody. The
best interest of the child should be utilized in deciding the case once a
change in condition has been established. . . . While a “best interest of
the child” standard applies to an initial determination of custody, . . . it
is applicable in a change of custody action only after there has been a
showing of a change in condition materially affecting the child. Here the
trial court determined that there had been no showing of such a change
of conditions.
(Citations and punctuation omitted.) Daniel v. Daniel, 250 Ga. App. 482, 484-485 (2)
(552 SE2d 479) (2001) (once a divorce decree has been approved and a permanent
child custody award has been entered, the test for use by the trial court in change of
custody suits is whether there has been a change of condition affecting the welfare
of the child). Moreover, it makes no difference that, as here, the proceeding is also
one involving allegations of contempt. See Collins v. Billow, 277 Ga. 604, 605 (1)
(592 SE2d 843) (2004) (a trial court lacks the authority to modify the terms of a
divorce decree in a contempt proceeding).
6
The final divorce decree provided that Odum and Russell would have joint
legal custody, and further designated which parent would have the power to make
decisions about the child’s education, activities, healthcare and religious training. See
OCGA § 19-9-6 (5).2 Here, after finding that the “parenting issues in the original
divorce agreement need adjusting,” and after expressly finding that there had been no
material change in circumstances, the trial court changed the final decision-making
authority over education from Odum to Russell, changed the decision-making
authority over extracurricular activities from joint to Odum, and removed an extra
week of custody during the summer from Odum.
Because the trial court expressly found that there had been no material change
in circumstances, the trial court was not authorized to modify the original custody
2
“Joint legal custody” means both parents have equal rights
and responsibilities for major decisions concerning the
child, including the child’s education, health care,
extracurricular activities, and religious training; provided,
however, that the judge may designate one parent to have
sole power to make certain decisions while both parents
retain equal rights and responsibilities for other decisions.
OCGA § 19-9-6 (5).
7
order by altering parental custody arrangements, which included arrangements over
which parent would have final authority over certain decisions relating to the child.
See OCGA § 19-9-6 (5). Accordingly, we reverse the trial court’s judgment in this
respect. See Weickert v. Weickert, 268 Ga. App. 624, 627 (1) (602 SE2d 337) (2004)
(noting that “a change of custody may be granted only if a new and material change
in circumstances affects the child”) (citation and punctuation omitted.)
We further note that, although the trial court is “expressly authorized to modify
visitation rights, even on its own motion, during a contempt proceeding [pursuant to
OCGA § 19-9-3 (b)],” Stewart v. Stewart, 245 Ga. App. 20, 21 (1) (537 SE2d 157)
(2000), removing Odum’s extra week of custody during the summer was a
modification of joint physical custody arrangements, not merely visitation, and absent
a material change in circumstances, the trial court was not authorized to do so.
Accordingly, the trial court’s modification of Odum’s summer custody arrangements
is likewise reversed.
2. Odum also contends that the trial court erred in awarding attorney fees and
litigation expenses to Russell pursuant to OCGA § §19-6-2 (a) and 19-9-3 (g).
We review a trial court’s decision whether to award attorney fees for an abuse
of discretion. See Hoard v. Beveridge, 298 Ga. 728, 730 (2) (783 SE2d 629) (2016).
8
Following a hearing, the trial court awarded Russell $500.00 in attorney fees pursuant
to OCGA § 19-6-2 “for her defense of the Motion for Citation of Contempt,” and
$500.00 in attorney fees “for [her] defense of the Petition to Modify Child Support.”
The trial court also awarded Russell attorney fees and litigation expenses pursuant to
OCGA § 19-9-3 “for [the] defense of the Petition to Modify Custody . . . . in the
amount of $44,770.37 . . . payable directly to [Russell’s] attorney.3
(a) Fees awarded under OCGA § 19-6-2
As a general rule, Georgia law does not provide for the award of
attorney fees even to a prevailing party unless authorized by statute or
by contract. OCGA § 19-6-2 (a) authorizes attorney fees against either
party, upon consideration of their financial circumstances, where the
action is for alimony, divorce and alimony, or contempt of court arising
out of either an alimony case or a divorce and alimony case. . . . Georgia
courts have thus approved attorney fees pursuant to OCGA § 19-6-2
when awarded as part of the expense of litigation in the original alimony
and divorce proceedings, and in subsequent actions for contempt based
on a party’s noncompliance with the divorce or alimony decree.
3
In support of her application for award of attorney fees and litigation
expenses, Russell included an itemized list of her attorney’s billed time, charges, and
other expenses, with an affidavit detailing the fees. The affidavit and bills reflected
that the total fees and expenses were $42,492.33, that Russell had paid $37,439.76
of the fees, and that there was an unpaid balance of $5,052.57.
9
(Citation and punctuation omitted.) Cothran v. Mehosky, 286 Ga. App. 640, 641 (649
SE2d 838) (2007).
Although Odum contends that the trial court erred in awarding attorney fees
under OCGA § 19-6-2 for the defense of the petition to modify child support,
[t]he statute grants discretion in awarding attorney fees whether the
action is for alimony, divorce and alimony, or contempt of court arising
out of either an alimony case or a divorce and alimony case. The action
filed by [Odum] was an action to modify [custody], an action for
contempt, and an action to modify child support. The action was not
purely an action for modification [of custody]. Therefore, under
[OCGA] § 19-6-2, the award of attorney fees was in the discretion of the
court.
(Citations and punctuation omitted.) McDonogh v. O’Connor, 260 Ga. 849, 849- 850
(400 SE2d 310) (1991) (court had discretion to award attorney fees because action
for modification of visitation and child support was joined with an action for
contempt for failure to comply with the original divorce decree). Compare Cothran
v. Mehosky, 286 Ga. App. at 641 (although contempt proceedings arose when the
ex-wife later failed to comply with the court’s order for DNA testing, proceedings did
not arise out of the original divorce case, as required by OCGA § 19-6-2, but arose
instead out of the paternity and modification action).
10
Here, the $1,000.00 award to Russell under OCGA § 19-6-2 was not based
solely on child support modification, but also on contempt allegations that arose out
of the original divorce decree; thus, the trial court ‘s award pursuant to OCGA § 19-6-
2 was not an abuse of its discretion. Accordingly, the award of fees under OCGA §
19-6-2 is affirmed.
(b) Fees awarded under OCGA § 19-9-3
The trial court also awarded litigation expenses and attorney fees pursuant to
OCGA § 19-9-3 “for [the] defense of the Petition to Modify Custody . . . . in the
amount of $44,770.37.”4 However, it is unclear to what extent the trial court’s
erroneous decision to modify the decision-making authority of the parents and to
modify summer custody affected the award of fees under OCGA § 19-9-3. Therefore,
we vacate that portion of the order awarding Russell attorney fees pursuant to OCGA
4
OCGA § 19-9-3 (g) provides, in pertinent part, that
[e]xcept as provided in Code Section 19-6-2, and in addition to the
attorney’s fee provisions contained in Code Section 19-6-15, the judge
may order reasonable attorney’s fees and expenses of litigation, experts,
and the child’s guardian ad litem and other costs of the child custody
action and pretrial proceedings to be paid by the parties in proportions
and at times determined by the judge.
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§ 19-9-3, and remand the case to the trial court for further proceedings consistent with
this opinion.
3. Odum contends that the trial court erred in granting Russell’s motion to
dismiss his initial notice of appeal. This enumeration is now moot, however, given
that Odum was able to later appeal the final order and have his arguments considered
on the merits, as reflected supra in Divisions 1 and 2. See Collins v. Lombard Corp.,
270 Ga. 120, 121 (1) (508 SE2d 653) (1998)(“a case is moot when its resolution
would amount to the determination of an abstract question not arising upon existing
facts or rights. “); Richardson v. Phillips, 302 Ga. App. 305, 310-311 (2) (690 SE2d
918) (2010) (“A case is considered moot if the parties’ dispute has been resolved,
such that the issues involved have become academic or dead.”) (citations and
punctuation omitted).5
Although Odum appears to contend that the issue is not moot because he was
held responsible for the legal fees and expenses associated with the dismissal of his
5
We note, however, that OCGA § 5-6-34 (a) (11) provides a right of direct
appeal from “[a]ll judgments or orders in child custody cases awarding, refusing to
change, or modifying child custody or holding or declining to hold persons in
contempt of such child custody judgment or orders.” Thus, the trial court’s custody
order was directly appealable pursuant to OCGA § 5-6-34 (a) (11), even though the
matter of attorneys fees and litigation expenses was pending in the case. See
Woodruff v. Choate, 334 Ga. App. 574, 576 (1) (780 SE2d 25) (2015).
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notice of appeal, this argument is not supported by a requisite reference to the record
reflecting those particular fees, and “we will not cull the record on a party’s behalf
to locate information in support of the party’s argument.” Doherty v. Brown, 339 Ga.
App. 567, 573 (2), n. 4 (794 SE2d 217) (2016).
Judgment affirmed in part, reversed in part, and vacated in part, and case
remanded with direction. McMillian and Mercier, JJ., concur.
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