Tannis N. Brazil v. Oliver L. Williams Jr. ( 2021 )

SECOND DIVISION
MILLER, P. J.,
HODGES and PIPKIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
May 19, 2021
In the Court of Appeals of Georgia
A21A0037. BRAZIL v. WILLIAMS.
MILLER, Presiding Judge.
The mother in this child custody dispute, Tannis Brazil, appeals from the trial
court’s order dismissing her petition to modify custody and the denial of her motion
for new trial. The mother argues that (1) the trial court erred by finding that Oliver
Williams, Jr.’s (“the father”) move from Georgia to Michigan was not a substantial
change in circumstances warranting an inquiry into whether a change in custody was
in the child’s best interests; and (2) the trial court erred by not allowing her to present
testimony on various issues during the hearing. We discern no abuse of discretion in
the trial court’s denial of the mother’s petition to modify custody, and we also
determine that the mother has not shown error in the exclusion of evidence.
Accordingly, we affirm.
Viewed in the light most favorable to the trial court’s order,1 the record shows
that the mother and father divorced in 2017 and are the parents of a daughter born in
2013, H. N. W. The final divorce decree awarded the parties joint legal custody of H.
N. W., with the mother having visitation rights and the father having primary physical
custody of H. N. W. and final decision-making authority. In August 2017, six months
after the entry of the divorce decree, the mother filed a petition for modification of
child custody and child support, seeking primary legal and physical custody of H. N.
W. In support of her petition, she claimed that there had been material changes in
circumstances affecting H. N. W.’s welfare because (1) the father had moved to
Michigan; and (2) while she had been previously unavailable to care for H. N. W. due
to a six-month night-time incarceration sentence, she had since completed that
sentence.
At the hearing on the mother’s petition, the trial court heard testimony from the
guardian ad litem (“GAL”) and both parents. The GAL testified that the father
brought H. N. W. to Georgia once per month, which was a departure from visitation
every other weekend with the mother, as provided for in the parenting plan. The GAL
was also concerned that, because of the move, H. N. W. had fewer opportunities for
1
Saravia v. Mendoza, 303 Ga. App. 758 (695 SE2d 47) (2010).
2
spontaneous activities with her siblings. She explained, however, that H. N. W. is
“very bonded” to both parents, that she would not be in danger with either parent, and
that it was “hard to pinpoint” whether either parent was preventing H. N. W. from
communicating with the other parent. The GAL added that communication between
the parents is inconsistent and that “there [are] a lot of fingers being pointed back and
forth.” Ultimately, the GAL recommended that custody mainly be placed with the
mother because, logistically, it would be easier for the father to visit H. N. W. in
Georgia.2
The mother testified that she was seeking custody of H. N. W. because H. N.
W. is sleepy when she arrives in Georgia, and the mother believed the plane travel to
be grueling. She also testified that her time with H. N. W. had been minimized since
the father’s move. The father testified that he brought H. N. W. to Georgia in
February, March, April, May, June, and July of 2019 and that the flight from
Michigan to Georgia takes approximately an hour and a half. He explained that he
could bring H. N. W. to Georgia every other weekend and that it was not cost-
prohibitive to do so as the plane tickets cost $50 round-trip. He added that H. N. W.
2
At the time of the divorce, the GAL recommended that the father be named
the custodial parent largely because the mother had made unsubstantiated allegations
that he had sexually abused H. N. W.
3
had continued to see her other family members in Milledgeville, Georgia, because
they come to Atlanta to spend time with her.
After the mother presented her evidence, the trial court granted the father’s
motion for a directed verdict, determining that the father’s relocation was not a
material change in circumstances. The court reasoned that the parties lived two hours
away from each other before the move, and they were now located less than two
hours away from each other by plane. The mother filed a motion for a new trial,
which the trial court denied after a hearing. This appeal followed.
1. First, the mother argues that, under Supreme Court of Georgia precedent, the
trial court erred by ruling that the father’s move to Michigan did not constitute a
material change in circumstances warranting an inquiry into whether a change in
custody was in H. N. W.’s best interests. She argues that, in relocation cases, it is
mandatory for the trial court to make findings regarding whether a change in custody
is in the child’s best interests. This argument finds no support in the law.
In Georgia, there is a well-established two-part test which the trial court must
employ before instituting a change of custody. “[T]he trial court must determine
whether there has been a material change in circumstances affecting the welfare of
the child since the last custody award. If so, the trial court then determines whether
4
the child’s best interest will be served by a change in custody.” (Citations omitted.)
Odum v. Russell, 342 Ga. App. 390, 392 (1) (802 SE2d 829) (2017). In other words,
“[t]he best interest[s] of the child should be utilized in deciding the case once a
change in condition has been established.” (Citation omitted.) Id. “While a ‘best
interest[s] 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.” (Citation omitted.) Id.(a) The first question before us is whether the Supreme Court of Georgia has
adopted a specific rule for relocation cases, i.e., that a parent’s relocation necessarily
triggers a need for the trial court to issue findings regarding whether a change in
custody is in the child’s best interests. We find that no such rule has been created.
In Bodne v. Bodne, 277 Ga. 445 (588 SE2d 728) (2003), the case on which the
mother relies, the Supreme Court of Georgia determined that a trial court may not
presume that a custodial parent’s decision to move is affirmatively in the best
interests of the child. Id. at 446. In doing so, the Court held that “[w]hen exercising
its discretion in relocation cases, as in all child custody cases, the trial court must
consider the best interests of the child and cannot apply a bright-line test.” Id.
Crucially, the Court immediately clarified the import of this holding, explaining,
5
“[t]his means that an initial custodial award will not always control after any new and
material change in circumstances that affects the child is considered.” (Punctuation
omitted; emphasis supplied.) Id.
It is clear to us that the Supreme Court’s adoption of the best-interests standard
in Bodne merely functioned as a rejection of the presumption that the custodial parent
has a prima facie right to retain custody of the child in relocation cases. Bodne, supra,
277 Ga. at 447 (overruling all Georgia cases that “presume[d] the custodial parent has
a prima facie right to retain custody unless the objecting parent shows that the
environment of the proposed relocation endangers a child’s physical, mental or
emotional well-being[.]”); Weickert v. Weickert, 268 Ga. App. 624, 626 (602 SE2d
337) (2004) (explaining that the Bodne Court abolished the presumption of
continuation of custody in favor of the best-interests standard).3 The Court in Bodne
did not alter the standard two-step framework for a trial court’s consideration of a
change in custody, and we find no language in Bodne intimating that a parent’s out-
of-state relocation automatically and necessarily constitutes a material change in
3
The mother is correct that, in Weickert, the Court found that the custodial
parent’s relocation “across the country” to California was a material change in
circumstances. Weickert, supra, 268 Ga. App. at 628 (1). Nevertheless, the Court did
not create any categorical rule that a custodial parent’s out-of-state relocation
automatically constitutes a material change in circumstances.
6
circumstances that warrants the best-interests inquiry. Indeed, in a predecessor case
to Bodne, the Supreme Court declared that “[w]hile many children experience a
degree of trauma or difficulty as the result of . . . the relocation of the family unit, that
emotional upset constitutes only a factor that can be considered in the totality of the
circumstances and balanced in determining whether a change of condition occurred.”
(Punctuation omitted; emphases supplied.) Scott v. Scott, 276 Ga. 372, 376 (578 SE2d
876) (2003).
Accordingly, because Bodne does not automatically require an inquiry into the
child’s best interests, the mother’s argument that trial court contravened the
requirements of Bodne is without merit.
(b) Further, the trial court did not commit reversible error in determining that
there had been no material change in circumstances affecting H. N. W.’s welfare.
“In making the determination whether there has been a material change in
circumstances affecting the child, the trial court is vested with broad discretion which
will not be disturbed on appeal unless abused.” Webb v. Webb, 245 Ga. 650, 652 (3)
(266 SE2d 463) (1980). We are exceedingly mindful that
[t]he task of assigning the custody of children lies squarely upon the
shoulders of the judge who can see and hear the parties and their
7
witnesses, observe their demeanor and attitudes, and assess their
credibility. We do not second-guess the trial court in this regard when,
as here, there is any reasonable evidence to support the decision.
(Citations and punctuation omitted.) Sadler v. Rigsby, 343 Ga. App. 269, 272 (1) (c)
(808 SE2d 11) (2017). Even “slight” evidence supporting the trial court’s ruling will
suffice. In Interest of R. R., 222 Ga. App. 301, 305 (3) (474 SE2d 12) (1996)
(physical precedent only). As the party seeking the modification of custody, “the
mother had the threshold burden of showing a material change in circumstances”
affecting H. N. W.’s welfare. Park-Poaps v. Poaps, 351 Ga. App. 856, 862 (2) (833
SE2d 554) (2019).
The trial court determined that the father’s relocation was not a material change
because (1) at the time of the divorce, the parties lived two hours away from each
other, which was contemplated by the final decree; and (2) given the father’s move
to Michigan, the parties were located less than two hours away from each other by
plane.4 These factual findings find some support in the record. The father testified that
4
The trial court also found that poor communication and co-parenting between
the parties did not rise to the level of material changes in circumstances because these
issues existed at the time of the divorce. Additionally, the trial court changed the
parenting plan as it related to visitation, ordered the parties to pay their own attorney
fees, and provided for the payment of the GAL’s fees. The mother has not challenged
8
the flight from Michigan to Georgia takes approximately an hour and a half and that
the travel time to facilitate visitation with the mother is essentially the same as when
he lived in Milledgeville. The mother confirmed that when the father lived in
Milledgeville, he was located two hours away from her. The father further testified
that he can bring H. N. W. to Georgia every other weekend. He testified that H. N.
W.’s grades in school had not suffered due to the travel, the travel had not worn on
her, and the travel to visit with the mother is less taxing than when he and H. N. W.
lived in Milledgeville. He added that H. N. W. maintains her relationships with her
other family members in Milledgeville because she communicates with them via
video calls and because they come to Atlanta to spend time with her.
Because the trial court’s ruling finds some evidentiary support in the record
(even if we were to characterize that evidence as slight), we cannot say that the trial
court abused its discretion in finding that the father’s relocation did not constitute a
material change in circumstances. See, e.g., Moore v. Wiggins, 230 Ga. 51, 54-55 (1)
(195 SE2d 404) (1973) (trial court did not abuse its discretion in determining that the
custodial parent’s move 400 miles away to Mississippi did not constitute a material
change in condition); Hirsh v. Dobb, 224 Ga. 130, 134 (3) (b) (160 SE2d 386) (1968)
any of these rulings on appeal.
9
(rejecting the father’s argument that “the evidence demanded a finding of change of
conditions” because the mother moved to Maryland); Scott v. Scott, 227 Ga. App.
346, 348-349 (1) (489 SE2d 117) (1997) (trial court did not abuse its discretion in
finding that the material changes in circumstances were not sufficient to remove
custody from the mother despite the CASA worker’s recommendation that custody
be changed to the father).
2. Next, the mother argues that the trial court erred in not allowing her to
present evidence regarding (1) the father’s failure to communicate with her
concerning H. N. W.’s broken leg, her schooling, and other events; (2) the father’s
failure to provide her with notice of his intent to move; and (3) the mother’s difficulty
with exercising visitation and communicating with H. N. W. The mother argues that
this evidence was relevant to the question of H. N. W.’s best interests and should
have been considered under OCGA § 19-9-3 (a) (3). This argument is unavailing.
First, while the mother argues that the trial court should have considered this
evidence when determining H. N. W.’s best interests (OCGA § 19-9-3 (a) (3)), the
trial court properly declined to proceed to the best-interests inquiry after its threshold
determination that there had been no material change in circumstances.
10
Additionally, the record clearly reflects that the court allowed testimony on the
issues that the mother raises. The mother cross-examined the father on (1) H. N. W.’s
communication with her via phone; (2) whether the father told her that H. N. W. had
broken her leg and whether he had tried to conceal the incident; (3) whether the father
told her that he had moved to Michigan and represented that he still lived in Georgia
even after he left the State; and (4) whether the father believed that H. N. W. could
maintain a relationship with her given the relocation. The mother was also allowed
to testify on many of these same issues. She testified as to the frequency with which
she speaks to H. N. W. via phone, the father’s supposed lack of communication with
her about H. N. W.’s broken leg, a pattern of not being able to see H. N. W. since the
move, and whether she would have greater access to H. N. W. if the father were still
in Georgia. She explained that the father had sent her pictures of H. N. W.’s Pre-K
graduation but did not “give [her] the opportunity” to attend and had not invited her
to H. N. W.’s school events. Additionally, before hearing testimony from the GAL,
the trial court ruled that the mother had properly given notice of her intent to present
evidence that the father had “worked to exclude [the mother] from the child’s life.”
The GAL was then allowed to testify that H. N. W. and the mother had been spending
less time together since the move. Accordingly, the record clearly shows that the trial
11
court did allow the mother to present evidence of the issues she raises in her appellate
brief.5
Because the trial court did not abuse its discretion in ruling that the father’s
relocation to Michigan was not a material change in circumstances affecting H. N.
W.’s welfare, and the mother has demonstrated no reversible error in the exclusion
of evidence, we affirm the denial of the mother’s petition to modify custody and the
denial of the mother’s motion for new trial.
Judgment affirmed. Hodges and Pipkin, JJ., concur.
5
To the extent that the mother may be arguing that the trial court should have
considered whether all of this evidence showed a material change in circumstances,
we observe that the mother repeatedly urged the trial court to consider the move —
standing alone — as the material change. At the hearing on the motion for new trial,
she claimed that “the move in and of itself” constituted the material change and that
“the other issues that come with the relocation” “would come into play on an
evaluation of what’s in the child’s best interest[s].” During the final hearing, the
mother insisted that the very fact that the father relocated “more than 500 miles away”
from his previous home satisfied the material-change prong. Accordingly, the mother
cannot now complain that the trial court should have assessed whether this additional
evidence showed a material change. See Saravia v. Mendoza, 303 Ga. App. 758, 762
(1) (695 SE2d 47) (2010) (“[I]t is well established that one cannot complain of a
judgment, order, or ruling that [her] own procedure or conduct procured or aided in
causing.”) (citation omitted).
12