Weiss v. Grant. , 346 Ga. App. 208 ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, 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 12, 2018
In the Court of Appeals of Georgia
A18A0002. WEISS v. GRANT.
MCFADDEN, Presiding Judge.
This appeal challenges a trial court order modifying a child custody order from
another state and ordering payment of a child support arrearage. Contrary to the
appellant’s claims, the trial court had jurisdiction to modify the foreign custody order.
The court did not err in modifying the prior order. The order addresses the appellee’s
past misconduct and does not exceed the scope of the court’s discretion. But the
appellant is correct that the trial court erred in ordering the appellee to repay a child
support arrearage at the rate of $100 per month, which improperly postpones the bulk
of the payments until after the children have reached the age of 18. Accordingly, we
affirm in part and reverse in part.
Sarah Weiss and Larry Grant were married in 2007, separated in 2008, and
divorced in 2011. The final divorce decree, entered by the Superior Court of Paulding
County, Georgia, found that the parties had two minor children, L. G. and T. G.; that
Weiss and the children were residents of South Carolina; and that a child custody
action was pending in a South Carolina Family Court.1 The South Carolina court had
previously entered a temporary order giving the parents joint custody of the children,
designating Weiss as the primary physical custodian, and awarding Grant one week
of visitation each month.
In April 2011, after a scheduled visitation, Grant failed to return the children
to Weiss, purportedly because Weiss was allowing a convicted child abuser to be
around the children. Weiss has disputed that allegation. Grant apparently moved out
of his home in Paulding County, took the children to live with him at different homes
both in and out of state, and concealed those locations from Weiss. On April 27,
2012, the South Carolina court entered a final custody order finding that Grant had
fled with the children and that they were still missing, granting sole custody of the
children to Weiss, and suspending Grant’s visitation.
1
The parties had agreed to have the Georgia court handle their divorce and the
South Carolina court handle child custody issues.
2
In October 2012, Grant and the children were found by police living in
Alabama. Grant was arrested on an outstanding South Carolina warrant and the
children were returned to Weiss. Grant pled guilty in South Carolina to a
misdemeanor charge of interfering with child custody and was given a probated
sentence, which he completed.
Grant filed a complaint in Paulding County Superior Court for modification of
the South Carolina order which had awarded sole custody to Weiss and had
suspended his visitation. Weiss filed an answer and motion to dismiss the action for
lack of jurisdiction. The trial court denied the motion to dismiss, finding that it had
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”), OCGA § 19-9-40 et seq. A hearing was held on July 1, 2015, during
which the trial judge stated that while he was not, at that point, going to change
custody, he was going to appoint a psychologist or counselor to evaluate the family
and make a recommendation to the court on “the question of what to do about these
children and . . . their parents in the future.” The court directed the parties to meet and
see if they could agree on a person to conduct the evaluation.
On September 9, 2015, the trial court entered a temporary order which,
pursuant to the parties’ agreement, appointed clinical psychologist Dr. Robert Shaffer
3
to evaluate the family and make a recommendation about what “is in the [c]hildren’s
best interests regarding re-introducing [Grant] into the [c]hildren’s lives.” The order
reiterated that the court was not, at that point, going to modify custody. But the order
temporarily awarded Grant two hours per week of supervised visitation.
Over a year later, on December 16, 2016, court held a final hearing at which
Dr. Shaffer was qualified as an expert witness. Dr. Shaffer testified, among other
things, that he had no concerns about any issues that would prevent Grant from
having a full relationship with his children; that the children were connected and
emotionally bonded to Grant; that he believed Grant could adequately meet the needs
of the children; that Grant’s abduction of the children was based on a genuine
protective instinct and concern about the children’s welfare; and that Grant
understood what he did was wrong and was not inclined to commit such an act again,
and would instead avail himself of other resources to protect the children. Dr. Shaffer
also testified not only that there was no reason to restrict the children from supervised
visitation with the father, but that unsupervised visitation would actually be healthier
for the children. Dr. Shaffer further opined that, in assessing the family as a whole,
it would be appropriate for Grant and Weiss to share joint legal custody.
4
On December 27, 2017, the trial court entered a final order modifying the
South Carolina custody order. The trial court found that a change in custody was in
the best interests of the children, ordering that Weiss and Grant have joint legal
custody of the children, awarding Weiss primary physical custody, and awarding
Grant visitation rights. Weiss filed a motion for new trial, which the trial court
denied. Weiss appeals.
1. Jurisdiction.
Weiss contends that the trial court lacked jurisdiction to modify the South
Carolina custody order. Because the parties and their children no longer resided in
South Carolina and jurisdiction was otherwise proper in the trial court, the argument
is without merit.
OCGA § 19-9-63, which is part of the UCCJEA, provides in pertinent part that
a court of this state may not modify a child custody determination made
by a court in another state unless a court of this state has jurisdiction to
make an initial determination under paragraph (1) or (2) of subsection
(a) of Code Section 19-9-61 and: (1) The court of the other state
determines it no longer has exclusive continuing jurisdiction under Code
Section 19-9-62 or that a court of this state would be a more convenient
forum under Code Section 19-9-67; or (2) A court of this state . . .
determines that neither the child nor the child’s parents or any person
acting as a parent presently resides in the other state.
(Emphasis supplied.)
5
With regard to the first provision set forth above – that in order to modify the
custody ruling of a foreign court, a Georgia court must have jurisdiction to make an
initial custody determination under OCGA § 19-9-61 –
[t]his provision makes it clear that . . . the requirements of [either]
paragraphs (1) or (2) of OCGA § 19-9-61 (a) must be satisfied by
showing[, in pertinent part]: (1) This state is the home state of the child
on the date of the commencement of the proceeding, . . . [or] (2) A court
of another state does not have jurisdiction under paragraph (1) of this
subsection, or a court of the home state of the child has declined to
exercise jurisdiction on the ground that [Georgia] is the more
appropriate forum [and certain other factors are met].
Jackson v. Sanomi, 292 Ga. 888, 889-890 (742 SE2d 717) (2013) (citation and
punctuation omitted).
In the instant case, the trial court expressly found in its 2017 final order that
Grant had lived in Georgia since 2012 and that “[a]t the time this action was filed,
[Weiss] and the [c]hildren were residents of Paulding County Georgia, and Georgia
was the home state of the [c]hildren.” The trial court further found in its final order
that “at the time this lawsuit was filed and up until the time of trial, Georgia was and
has remained the home state of the [c]hildren.” Likewise, in its order denying Weiss’
motion for new trial, the trial court reiterated that it had “previously found on multiple
occasions, including in section 4 of the Final Order, that Georgia was and remained
6
the home state of the children at the relevant times prior to and during the course of
this litigation, and that none of the children, parents, or persons acting as parents
resided any longer in South Carolina.”
Nevertheless, Weiss argues on appeal that no determination was ever made that
Georgia was the home state of the children at the time the complaint was filed. But
as recounted above, the record plainly shows that the trial court expressly made that
precise determination multiple times. Weiss has pointed to no evidence contradicting
that determination; on the contrary, she admits in her appellate brief that she and the
children were living in Georgia at the time this action was filed. Accordingly, given
the findings that the children and parents no longer resided in South Carolina and that
Georgia was the home state of the children at the time the action was filed, the trial
court “properly assumed jurisdiction pursuant to OCGA § 19-9-63 to try proceedings
filed in the Georgia court seeking to modify the [South Carolina] court custody
determination.” Lopez v. Olson, 314 Ga. App. 533, 538 (2) (724 SE2d 837) (2012).
2. Joint legal custody.
Weiss enumerates that the trial court erred in awarding the parties joint legal
custody. Her arguments in support of this enumeration are without merit.
(a) No authority to reconsider joint legal custody claim.
7
Weiss contends that the trial court dismissed Grant’s claim for joint legal
custody during the hearing on July 1, 2015, and therefore it had no authority to
reconsider that claim in its final order. But contrary to this contention, the trial court
did not dismiss the claim for joint legal custody at the hearing.
Near the end of the hearing, the judge announced, “I don’t plan on changing
the issue of joint legal custody at this particular point in time.” (Emphasis supplied.)
After counsel for Weiss asked the judge if he was granting her motion for a directed
verdict on the joint legal custody claim, the trial court did not rule on the motion, and
instead stated, “Well, I’m going to dismiss that part of the complaint. I’m going to
deny that part of his complaint dealing with the change of custody[.]” Upon inquiry
by counsel for Grant, the judge expressly indicated that the denial of the claim for
change of custody was merely a temporary ruling at that point. The judge later
confirmed that the custody ruling was temporary, explaining to Grant’s counsel: “I’m
just denying your request [for joint legal custody] for now. I guess if something is
different some other time, I’ll consider it. But right now, I’m not changing any
custody.” (Emphasis supplied.) Thereafter, the trial court entered its written
temporary order appointing Dr. Shaffer, expressly denying Weiss’ motion for a
directed verdict, and reiterating that “at this point it does not appear that [the court]
8
will grant Plaintiff’s request for joint legal custody.” (Emphasis supplied.) Nowhere
in the order did the trial court dismiss the change of custody claim.
Thus, it is clear from a review of the entire hearing transcript and the written
temporary order that the trial court never intended to and did not dismiss the claim
for joint legal custody. In discussing that claim at the hearing, “the trial court’s
[initial] use of [the word “dismiss”] instead of [“deny”] was a misstatement, or
palpable ‘slip[] of the tongue’ [which the court immediately corrected].” Smallwood
v. State, 296 Ga. 16, 20 (3) (673 SE2d 537) (2009) (citations and punctuation
omitted). As explained at the hearing and in the written order, the court merely denied
the claim temporarily, but left the matter open for further consideration after the
evaluations and recommendations by Dr. Shaffer. Accordingly, Weiss’ enumeration
of error, premised on the inaccurate factual assertion that the court had dismissed the
change of custody claim, is without merit.
(b) Scrivener’s error.
Weiss complains that the language in the temporary order denying her motion
for a directed verdict was a scrivener’s error because it did not comport with the trial
court’s intention, as revealed by a review of the hearing transcript, to dismiss Grant’s
claim for joint legal custody. However, as discussed above, a review of the hearing
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transcript does not reveal that the court intended to dismiss the claim, and instead
plainly reveals that the court intended only to deny that claim temporarily. Thus, there
was no discrepancy between the trial judge’s oral pronouncement at the hearing and
the court’s written temporary order. Moreover, even if there had been a discrepancy,
an oral pronouncement by a trial court during a hearing is not a
judgment until it is reduced to writing and entered as a judgment. An
oral pronouncement explaining how the court intends to rule is not
binding. It may provide insight on the intent of a later written judgment,
but any discrepancy between the written judgment and oral
pronouncement is resolved in favor of the written judgment.
Noble v. Noble, ___ Ga. App. ___ (1) (Case No A18A0617, decided May 18, 2018)
(citation and punctuation omitted). Accordingly, Weiss has shown no error.
(c) Abuse of discretion.
Weiss contends that the trial court abused its discretion in modifying the South
Carolina child custody order. We disagree.
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. The evidence sufficient to
warrant a modification of custody can consist of a change in material
conditions which have a positive effect on the child’s welfare[.]
10
Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012) (citations and
punctuation omitted). “The circumstances warranting a change in custody are not
confined to those of the custodial parent: any new and material change in
circumstances that affects the child must also be considered.” Neal v. Hibbard, 296
Ga. 882, 884 (1) (770 SE2d 600) (2015) (citation omitted). Factors the court may
consider in determining the best interests of the child include the bonding and
emotional ties existing between each parent and child, and any recommendation by
a court-appointed custody evaluator. See OCGA § 19-9-3 (a) (3) (A), (O). “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.” Vines v. Vines, 292 Ga. 550, 552 (2) (739 SE2d 374) (2013)
(citations omitted).
Here, the trial court made extensive findings of fact in its final order, relying
heavily on Dr. Shaffer’s testimony and recommendations, and finding that there were
material changes in circumstances since the entry of the South Carolina custody
order, which was premised on Grant’s unlawful taking of the children. Among other
things, the court found that Grant had successfully completed his sentence for the
11
interference with custody charge in South Carolina, that it does not appear likely he
would take the children again in violation of court orders, that he has cooperated with
Dr. Shaffer’s treatment and recommendations, that he has reestablished a good
relationship with the children, and that reintroducing Grant into the children’s lives
has moved forward positively. Based on its finding of material changes in
circumstances, the court concluded that a modification of custody was warranted and
that a close and continuing relationship with each parent is in the best interests of the
children.
Whether there are changed conditions affecting the welfare of the
child[ren] occurring after the rendition of a former final custody
judgment which will warrant changing custody is essentially a fact
question in each individual case. And if there is reasonable evidence in
the record to support the decision made by the [trial] court in changing
or refusing to change custody or visitation rights, then the decision of
that court must prevail.
Dearman v. Rhoden, 235 Ga. 457, 459 (4) (219 SE2d 704) (1975) (citations and
punctuation omitted). Because the trial court’s “determination was supported by some
evidence, [including the expert testimony of Dr. Shaffer,] we cannot say that the trial
court abused its discretion when it made [the] modification of custody.” Bankston v.
Warbington, 332 Ga. App. 29, 34 (1) (771 SE2d 726) (2015) (citations omitted).
3. Visitation award.
12
Weiss claims that the visitation awarded to Grant by the trial court, which
gradually increased the amount of supervised and then unsupervised visitation over
the course of one year, constituted an impermissible self-executing change in custody.
However, because the award does not entail an improper delegation of judicial
authority, does not contain provisions that execute at an uncertain date well into the
future, and based the gradual increase in visitation on the children’s best interests, we
find no error.
In its final order, the trial court found that in the best interests of the children,
Grant was entitled to resume regular visitation with the children, but that a gradual
increasing of those rights was appropriate. The court then set out a detailed visitation
schedule providing for two hours of supervised visitation every weekend in January
2017; four hours of supervised visitation every weekend in February 2017; eight
hours of supervised visitation every other weekend in March and April 2017; twelve
hours of unsupervised visitation at Grant’s house every other weekend in May and
June 2017, but supervision of any time not spent at the home, including the drive to
and from the mother’s home; twelve hours of unsupervised visitation every other
weekend in July and August 2017; twenty-four hours of unsupervised visitation every
other weekend in September and October 2017; and thirty-six hours of unsupervised
13
visitation every other weekend in November and December 2017. Then, beginning
in January 2018 and proceeding thereafter, the order provided for a more traditional
visitation schedule, including visitation every other weekend, and specified school
holiday and summer break visitations.
Visitation privileges are, of course, part of custody.
Self-executing change of custody provisions allow for an automatic
change in custody based on a future event without any additional
judicial scrutiny. Our Supreme Court has held that any self-executing
change of custody provision that fails to give paramount import to the
child’s best interests in a change of custody as between parents must be
stricken as violative of Georgia public policy. But not all self-executing
provisions are invalid. Rather, we must closely examine the nature of
any such provision in determining whether it fails to give paramount
import to the child’s best interests. . . .
A review of the case law regarding prohibited self-executing
provisions shows that they can generally be summarized as having one
of two critical flaws. First, self-executing provisions that rely on a
third-party’s future exercise of discretion essentially delegate the trial
court’s judgment to that third party. And, second, self-executing
provisions that execute at some uncertain date well into the future are
not permitted because the trial court creating those provisions cannot
know at the time of their creation what disposition at that future date
would serve the best interests of the child; the passage of time and thus,
likelihood of changed circumstances is just too great.
Hardin v. Hardin, 338 Ga. App. 541, 543-544 (1) (790 SE2d 546) (2016) (citations
and punctuation omitted).
14
In this case, the visitation plan “at issue is a self-executing change of visitation
since it allows for an automatic change in [Grant’s] visitation with his child[ren],
from supervised to unsupervised [and for increasing lengths of time], based on
[certain dates] without any additional judicial scrutiny.” Johnson v. Johnson, 290 Ga.
359, 360 (721 SE2d 92) (2012) (citation omitted). However, this self-executing
visitation plan does not suffer from either of the critical flaws that generally are found
in prohibited provisions. See Hardin, supra. First, the visitation plan in this case does
not improperly delegate the trial court’s judgment to a third party by relying on that
third-party’s future exercise of discretion to make visitation changes. Rather, the trial
court exercised its own discretion in determining a specific schedule for Grant’s
gradually increasing visitation privileges. Compare Johnson, supra (visitation
provision impermissibly gave therapist the authority to determine how and when to
phase out supervised visitation); Hardin, supra at 545 (1) (provision improperly
delegated authority to determine custody changes to a counselor); Ezunu v. Moultrie,
334 Ga. App. 270, 273 (2) (779 SE2d 44) (2015) (provision stricken where it allowed
children’s therapist to decide if and when modifications of visitation were warranted).
Second, the provision for Grant’s increasing visitation privileges did not execute at
some uncertain date well into the future; instead, the detailed visitation plan set forth
15
specific dates for each change to occur within the year following the final order.
Compare Dellinger v. Dellinger, 278 Ga. 732, 735 (1) (609 SE2d 331) (2004) (self-
executing change in visitation provision lacked any expiration date and could take
effect at any time, even years in the future). See Lester v. Boles, 335 Ga. App. 891,
893 (1) (782 SE2d 53) (2016) (self-executing custody provision set to occur at a
readily identifiable time 16 months after entry of order did not suffer the infirmity
identified in Dellinger because it was not an open-ended provision conditioned upon
some future event that could occur at any time).
Moreover, not only does the self-executing visitation plan in this case not
suffer from the critical flaws discussed above, but the trial court based the gradually
increasing visitation privileges on the best interests of the children. In making its
decision, the trial court expressly and repeatedly found, based on the evidence, that
a change of custody, including Grant’s visitation, was warranted in the best interests
of the children; that a close and continuing relationship with both parents was in the
best interests of the children; and that in the best interests of the children, Grant was
entitled to resume regular visitation and “that a gradual increasing” of such visitation
was appropriate. “Because the challenged [visitation] provision in this case gave
paramount import to the [children’s] best interests, we find no abuse of discretion.”
16
Lester, supra (punctuation omitted). See also Durden v. Anderson, 338 Ga. App. 565,
567 (2) (790 SE2d 818) (2016) (upholding self-executing modification of father’s
visitation rights upon child reaching age for pre-kindergarten).
4. Visitation safeguards.
Contrary to Weiss’ claim, the trial court included numerous safeguards in its
gradually increasing visitation plan to deter Grant from fleeing with the children.
During the months of supervised visitations, the court specified acceptable locations
and supervisors, authorized the mother to call the supervisor during the visits, and
authorized the use of video calls for the mother to view the children during the visits.
During the initial months of unsupervised visitation at Grant’s house, the court
mandated supervision of the drives to and from the house and of any time not spent
at the house, and further provided for the use of a tracking device for Weiss to know
Grant’s location. Throughout the visitation periods, the court ordered specific contact
requirements for Weiss to be informed of the children’s location.
Where a court is concerned that a parent might abduct a child, certain
“arrangements, including limited and supervised visitation, could be instituted to
satisfy the trial court’s concerns that [the parent] might abduct the child if granted
visitation.” Williams v. Williams, 301 Ga. 218, 221 (1) (800 SE2d 282) (2017)
17
(citation and punctuation omitted). See also Chandler v. Chandler, 261 Ga. 598, 599
(1) (409 SE2d 203) (1991). The trial court instituted such arrangements and
safeguards in its visitation order, and Weiss “has shown no abuse of the trial court’s
discretion here.” Williams, supra (footnote omitted).
5. Child support arrearage.
The trial court ruled in favor of Weiss on her counterclaim for contempt for
Grant’s nonpayment of previously ordered child support, finding a child support
arrearage of $27,270 and ordering Grant to pay $100 per month “until such time as
the entire child support arrearage is paid off.” On appeal, Weiss first contends that the
trial court miscalculated the amount of the arrearage. However, she has failed to
support this enumeration of error with citations to any evidence in the record showing
that the court miscalculated the arrearage amount. See Court of Appeals Rule 25 (c)
(2) (i) (“Each enumerated error shall be supported in the brief by specific reference
to the record or transcript. In the absence of a specific reference, the Court will not
search for and may not consider that enumeration.”) The only evidence concerning
the arrearage that is referenced anywhere in her brief is a portion of her own trial
testimony that the arrearage totaled $21,900. Under these circumstances, Weiss “has
failed to carry [her] burden on appeal of affirmatively proving by the record that the
18
[trial] court erred in finding [the arrearage amount of Grant’s] child support
payments[.]” In re Estate of Williams, 241 Ga. App. 17 (1) (525 SE2d 742) (1999)
(citation omitted).
But Weiss further argues that the provision for Grant to repay the child support
arrearage at the rate of $100 per month is erroneous because at that rate it would take
over 18 years to pay the entire amount. We agree.
A husband or wife has a variety of remedies available for
enforcing and collecting a child support order. The remedies of action
for contempt, execution by writ of fi. fa., garnishment, URESA
(Uniform Reciprocal Enforcement of Support Act), and an action to set
aside fraudulent conveyances are available to the complaining spouse,
either singly or concurrently. The complaining spouse is not required to
make an election of remedies, and a trial court may not limit the
remedies available to collect or enforce a child support order. In
addition, a trial court may not order the postponement of payment of the
child support until the child reaches the age of 18. Minor children are
entitled to support during their minority.
Strunk v. Strunk, 294 Ga. 280, 283 (5) (754 SE2d 1) (2013) (citations and punctuation
omitted). Here, the trial court’s order that Grant must only pay $100 per month
improperly limits Weiss’ ability to collect the child support due and postpones
payment of much of the child support until after the children, who were ten and seven
years old at the time of the final order, reach the age of eighteen.
19
[C]ontrary to the general rule that children are entitled to financial
support during their minority, the trial court’s order on arrearage
payments limits the amount that [Grant] was required to pay while the
children were minors living at home and postponed payment of the bulk
of the arrearage until the children reached the age of 18. Because the
trial court erred in . . . limiting [Weiss’] remedies, and postponing much
of the payments until the children were 18, we reverse the portion of its
order setting out a payment schedule for the arrearage.
Id. at 284 (5).
Judgment affirmed in part and reversed in part. Rickman, J., concurs. Ray, J.,
concurs fully in Divisions 1, 2, 3, and 4 and in judgment only as to Division 5.*
* DIVISION 5 OF THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE
COURT OF APPEALS RULE 33.2(a).
20