Anthony Longino v. Sandra Longino ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, 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
October 11, 2019
In the Court of Appeals of Georgia
A19A1386. LONGINO v. LONGINO.
BARNES, Presiding Judge.
Under the terms of Anthony and Sandra Longino’s 2017 final divorce decree,
the wife was awarded primary physical custody of the couple’s two daughters. In
January 2018, the husband filed an emergency motion for temporary custody of the
girls and contemporaneous petition for modification of custody based, in part, on the
wife’s alleged abuse of alcohol and prescription drugs, and educational neglect of the
children. In his petition for modification of custody, the husband claimed that there
had been a substantial change in circumstances such that it was in the children’s best
interest for him to become their permanent primary physical custodian. Subsequent
to a hearing on the petition, in February of 2018, the couple entered into a temporary
consent order under which the husband was given physical custody of the children
and the wife granted supervised visitation.
On November 8, 2018, the trial court held a hearing on the petition for
modification of custody at which the mother, father, and several witnesses testified
and presented evidence concerning the parents’ relationship, the mother’s parenting
and the children’s welfare. On December 14, 2018, the trial court entered an order
granting the couple joint legal custody, with the husband as the designated primary
physical custodian, and the couple sharing alternating weeks of physical custody. The
husband now appeals from that order and contends that the trial court erred in finding
that the award of joint physical custody was in the children’s best interest. For the
reasons set forth below, we remand the case to the trial court for further proceedings
consistent with this opinion.
“In considering the appeal of a child-custody decision, we view the evidence
in the light most favorable to the trial court’s decision.” Driver v. Sene, 327 Ga. App.
275, 276 (758 SE2d 613) (2014). And we review a trial court’s custody decision for
an abuse of discretion. Id. at 277. Where there is any evidence to support the trial
court’s ruling, a reviewing court cannot say there was an abuse of discretion. Haskell
v. Haskell, 286 Ga. 112, 112 (1) (686 SE2d 102) (2009). A petition to change child
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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.”
(Punctuation omitted.) Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012);
OCGA § 19-9-3 (b) (“this subsection shall not limit or restrict the power of the judge
to enter a judgment relating to the custody of a child in any new proceeding based
upon a showing of a change in any material conditions or circumstances of a party or
the child”). If there has been such a material change, the court should then “look to
and determine” the best interest of the children. OCGA § 19-9-3 (a) (2) (“The duty
of the judge in all [custody] cases shall be to exercise discretion to look to and
determine solely what is for the best interest of the child and what will best promote
the child’s welfare and happiness and to make his or her award accordingly.”); New
v. Goss, 327 Ga. App. 413, 414 (2) (759 SE2d 266) (2014) (trial court must find a
material change in conditions or circumstances and that the change in custody is in
the best interest of the children.)
Thus, in modifying a previous custody arrangement, a threshold finding that the
trial court must make is that there has been a material change in circumstances before
it then considers what is in the children’s best interest. Weickert v. Weickert, 268 Ga.
App. 624, 627 (1) (602 SE2d 337) (2004); Odum v. Russell, 342 Ga. App. 390, 392
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(1) (802 SE2d 829) (2017) (“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.”) (citation and punctuation omitted). This Court has further held that
[a]lthough . . . a trial court must find that a material change in
circumstances has taken place before it can consider whether
modification of custody is in the children’s best interests, we will not
remand to require the use of the word ‘material” where . . . it is manifest
from the written order that the trial court considered that significant and
substantial changes in circumstances had occurred.”
Weickert, 268 Ga. App. at 628 (1) (noting that omission of “magic word ‘material’ to
modify the word ‘change” did not require remand when “[c]onsidering the order as
a whole, a strong implication arises that the trial court considered the change of
circumstances to have been material. The order recited a correct understanding of the
law and then changed custody following a week-long trial.”). However, “[w]ithout
an explicit statement specifying the factual bases for the trial court’s implicit
conclusion that a change in material conditions or circumstances justified a change
in custody in this case, this Court is not in a position to evaluate whether the trial
court acted within the limits of its discretion.” Gordy v. Gordy, 246 Ga. App. 802,
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803 (1) (542 SE2d 536) (2000). In Gordy, the trial court did not state specifically a
finding that a material change in circumstance existed or that a change in custody was
warranted in the children’s best interests. Id. We further noted in that case that “[a]t
the hearing [on the custody modification petition], the trial court’s only explanation
of its forthcoming order was the following: ‘It’s a very hard case. . . . I find that in the
best interest of the children, they should be with their father.’” Id. And we pointed out
that,
[i]n their briefs, both parties make certain assumptions about the factual
findings underlying the trial court’s modification of custody, based on
the content of [the father’s] petition and the evidence presented at the
hearing. But on the record the trial court did not state that it found that
a change in material conditions or circumstances justified a change in
custody, nor did the court identify any specific factual findings
supporting that legal conclusion.
(Emphasis omitted.) Id.Likewise here, there is nothing in the trial court’s order or the hearing that
assists this Court in its evaluation of whether the trial court properly exercised its
discretion in modifying the former custody arrangement. The order merely sets forth
in detail the new custody and child support arrangement, and nothing more. At the
hearing, the trial court provided no additional insight as why it modified the custody.
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At no point did the trial court state that it had found a material change in
circumstances that affected the children, or that the best interests of the children
would be served by a change in custody. In concluding the hearing, the trial court
informed the parties that it was going to take the evidence “under review,” noted that
the daughter she had spoken to privately within chambers was a “neat kid” and that
the parents “have done a good job.”
We are aware that this Court has consistently held that pursuant to OCGA § 19-
9-3 (a) (8)1 and the OCGA § 9-11-52 (a)2, specific findings of fact as to the basis for
the judge’s decision are not required unless requested. See Weickert, 268 Ga. App.
at 629 (2) (in a child custody modification action, the trial court was not required to
1
If requested by any party on or before the close of evidence
in a contested hearing, the permanent court order awarding
child custody shall set forth specific findings of fact as to
the basis for the judge’s decision in making an award of
custody including any relevant factor relied upon by the
judge as set forth in paragraph (3) of this subsection. Such
order shall set forth in detail why the court awarded
custody in the manner set forth in the order. . . .
2
“[I]n all nonjury trials in courts of record, the court shall upon request of any
party made prior to such ruling, find the facts specially and shall state separately its
conclusions of law.”
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include specific findings of fact in its written order because neither party requested
that the court do so); Clark v. Rau, 338 Ga. App. 251, 255 (3) (789 SE2d 399) (2016)
(order not “facially deficient” when “neither party requested specific findings of fact,
which under OCGA § 19-9-3 (a) (8) need only be provided if requested by any party
on or before the close of evidence.”) (punctuation omitted). And we are also
cognizant of the presumption of correctness given to the trial court where “there is no
indication in the record that the trial judge . . . applied in any other standard” than
those required by OCGA § 19-9-3. (Citation and punctuation omitted.) Dallow v.
Dallow, 299 Ga. 762, 777 (4) (791 SE2d 20) (2016) (“in the absence of a contrary
showing, the trial court will be presumed to have followed the law.” )
However, without either a statement anywhere on the record reflecting that the
trial court found a change in material conditions or circumstances that justified the
change in custody, or an order that reflected in some degree that the trial court
understood and applied the requisite findings, we must vacate the trial court’s order
and remand the case for the trial court to make such threshold statutory findings. See
Burnham v. Burnham, 350 Ga. App. 348 (829 SE2d 425) (2019) (trial court failed
make the threshold factual finding that a material change in circumstances prior to
considering the best interests of the children); Morgan v. Fordham, 328 Ga. App.
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227, 228-229 (761 SE2d 621) (2014) (physical precedent only) (trial court’s failure
to make finding that there were changed circumstances and focusing solely on best
interest analysis required remand); Johnson v. Hubert, 175 Ga. App. 169, 170 (1)
(333 SE2d 21) (1985) (where the trial court awarded custody of the child to the
plaintiff father solely upon the conclusion that it was in the child’s best interest
without making the threshold determination that there was a change in material
circumstances, the trial court failed to apply the proper legal standard and remand was
required); compare Weickert, 268 Ga. App. at 627-628 (1) (reading trial court’s order
as a whole showed that trial court understood the threshold requirement of changed
circumstances and that it found them to exist).
Judgment vacated and remanded with direction. Mercier and Brown, JJ.,
concur.
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