Floyd v. Brown ( 2016 )

SECOND DIVISION
BARNES, P. J.,
BOGGS 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
August 12, 2016
In the Court of Appeals of Georgia
A16A1034. FLOYD v. BROWN.
BARNES, Presiding Judge.
Shauntia Floyd appeals from the order of the trial court awarding sole legal and
physical custody of her two children to the children’s father, Jermaine Brown. Upon
our review, we affirm.
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 as well as
changes which adversely affect the child.
(Citations and punctuation omitted.) Viskup v. Viskup, 291 Ga. 103, 105 (1) (727
SE2d 97) (2012). See also OCGA § 19-9-3 (b). “A trial court faced with a petition for
modification of child custody is charged with exercising its discretion to determine
what is in the child’s best interest.” (Citation and punctuation omitted.) Blumenshine
v. Hall, 329 Ga. App. 449, 450 (1) (765 SE2d 647) (2014). Moreover,
[a] court’s determination that there has been a material change in
condition supporting a modification of custody will be affirmed on
appeal absent abuse of discretion, and where there is any evidence to
support the trial court’s ruling, a reviewing court cannot say there was
an abuse of discretion.
(Citation and punctuation omitted.) Id.
The record reflects that Brown and Floyd were married in 2009, and divorced
in 2010. After the divorce, Floyd was awarded sole legal and physical custody of their
two children who were born before the couple married.1 The two children were placed
in Brown’s temporary custody after Floyd was incarcerated for aggravated assault,
aggravated battery, and cruelty to children after allegedly breaking the arm of one of
her other children.2 On July 28, 2014, the children were returned to Floyd’s custody,
after which, on September 30, 2014, Brown filed a complaint for modification of
custody and child support for primary physical custody of the children. Brown later
1
Brown’s petition to legitimate the two children was granted in November of
2009.
2
Floyd has five older children who are not Brown’s children.
2
amended the complaint to seek “sole legal and physical custody” of the children. On
March 31, 2015, after Floyd failed to appear for a 30-day status conference, the trial
court entered a temporary order finding that “[u]pon evidence presented . . . it is in
the best interest of the . . . children. . . that [Brown] have sole legal and physical
custody of the minor children.”
Following a hearing, which is not included in the record, the trial court granted
Brown sole legal and physical custody of the children in a final order entered on
November 18, 2015.3 In its final order, the trial court noted that Floyd had been
arrested “multiple times” since the original custody determination, including arrests
for battery, harassing phone calls, criminal trespass, reckless conduct, and her most
recent arrest for aggravated assault, aggravated battery, and cruelty to children. It
further found that, in contrast, Brown had a safe and stable home for the children, no
history of arrests, and was employed with a stable job and income.
1. This Court has consistently warned pro se appellants about the hazards
inherent in proceeding pro se on appeal. Central to those warnings is that
“[p]roceeding pro se does not relieve [Floyd] of [her] obligation to comply with the
rules of this Court.” Goodman v. State, 313 Ga. App. 290, 291 (717 SE2d 496)
3
Floyd was present at the hearing and represented herself.
3
(2011). “Our requirements as to the form of appellate briefs were created, not to
provide an obstacle, but to aid parties in presenting their arguments in a manner most
likely to be fully and efficiently comprehended by this Court.” Aldalassi v.
Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996).
Here, there is no statement of the proceedings below, no statement of facts, nor
is there one specific reference to the record or transcript in the entirety of Floyd’s
appellate brief. The brief does not contain any appreciable enumerated errors,
argument or substantive legal analysis. Especially troubling in this case is that
Floyd’s appellate “brief” is a two-page form document which, although purportedly
following the structure prescribed for appellate briefs as outlined in our rules, fails
to provide the required content of an appellate brief.4 See Court of Appeals Rules 25
(a), (c). The first line of the document, denoted as “Form 7” and titled, “Brief of
Appellant,” states, “COMES NOW Appellant _______ [Plaintiff/Defendant] below,
and files this brief on appeal.” The form has four divisions: “Part One Facts,” “Part
Two Enumerations of Error,” “Part Three Standard Review,” and, last, “Argument
and Citation of Authorities.” There is a space with between five or six lines under
each division, and Floyd handwrote information in the space allotted for each section.
4
The second page of the document is the certificate of service.
4
In the space provided for the section entitled “Part One Facts,” the brief states
in total:
On the 28th day of July 2014 . . . Floyd was awarded back custody of my
two children . . . from them living temporarily with . . . Brown from me
being incarcerated on felony changes from my daughter [K. F.]. There
was anger management in place, psychological, parental fitness
evaluation, domestic violence evaluation, etc.
Under the section entitled “Part Two Enumeration of Errors” is written:
Jermaine Brown father of my two children . . . filed a modification of
custody back of his two children because he didn’t like or accept the fact
that custody was returned back to me . . . . So unfairly he files all type
of paper from Dekalb to Fulton County with all these [illegible] excuses
to win custody of my babies.
In the space provided for the “Part Three Standard of Review” Floyd states:
Due to substantial reasons of custody being turned over to the father. .
. the case was not thoroughly or completely evaluated, neither was
[there] a matter that I was found or deemed to be unfit to parent my
children. He was just granted legal, physical. and sole custody of the two
of our kids. . . .
And in the space under the section entitled “Argument and Citation of Authority,” the
brief simply states:
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Jermaine’s attorney . . . argued that my two sons and I had criminal
cases, which didn’t have anything to do with any physical harm or threat
to the minor kids. . . . [A]lso the [guardian] ad litem used my
information as her form of decision based on other allegations etc.
While certainly form documents can sometimes provide helpful guidance in
certain routine legal matters, especially if there is informed help in filling out the
form, it is clear that in this case, Floyd did not understand the actual content required
for each part of an appellate brief. Instead, she relied on the false assumption that by
writing something in each section of the “Brief of Appellant” form, she was satisfying
our appellate brief requirements. We reiterate that proceeding pro se does not relieve
Floyd of the obligation to comply with rules of this Court. Goodman, 313 Ga. App.
at 291. See Court of Appeals Rule 25 (a) (an appellant’s brief “shall contain a
succinct and accurate statement of the proceedings below and the material facts
relevant to the appeal and the citation of such parts of the record or transcript
essential to a consideration of the errors complained of”); Rule 25 (c) (2) (“Any
enumeration of error which is not supported in the brief by citation of authority or
argument may be deemed abandoned.”); and Rule 25 (c) (2) (i) (“Each enumerated
error shall be supported in the brief by specific reference to the record or transcript.
6
In the absence of such reference, the Court will not search for or consider such
enumeration.”).
However, our Supreme Court has emphasized that
[i]n addition to the statutory mandate that the [Appellate Practice Act]
be “liberally construed so as to bring about a decision on the merits of
every case appealed and to avoid … refusal to consider any points raised
therein” (OCGA § 5-6-30), the legislature, in enacting OCGA § 5-6-48
(f), has imposed on the appellate courts a statutory duty to discern what
errors an appellant is attempting to articulate.
Felix v. State, 271 Ga. 534, 538 (523 SE2d 1) (1999). Further OCGA § 5-6-48 (f)
directs that
[w]here it is apparent from the notice of appeal, the record, the
enumeration of errors, or any combination of the foregoing, what
judgment or judgments were appealed from or what errors are sought to
be asserted upon appeal, the appeal shall be considered in accordance
therewith notwithstanding that . . . the enumeration of errors fails to
enumerate clearly the errors sought to be reviewed.
(Emphasis supplied.)
Mindful of this direction, Floyd appears to assert on appeal that the trial court
erred in granting Brown’s petition for modification of custody and child support.
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However, any claim of error found to be unsupported by authority or argument will
be deemed abandoned under Rule 25 (c) (2). Additionally, notwithstanding her failure
to provide any cognizant support for this claim, we also note that “[i]n accordance
with the presumption of the regularity of court proceedings, we must assume in the
absence of a transcript that there was sufficient competent evidence to support the
trial court’s findings.” (Citations and punctuation omitted.) Reed v. Reed, 295 Ga.
574, 578 (2) (761 SE2d 326) (2014).
Accordingly, based upon the evidence described in its order, the trial court was
authorized to conclude that there had been a material change in condition since the
parties’ divorce supporting a modification of custody and that it was in the best
interest of the children for custody to be awarded to Brown. See Blumenshine, 329
Ga. App. at 450 (1); see also Vines v. Vines, 292 Ga. 550, 552 (739 SE2d 374) (2013)
(“Where there is any evidence to support the trial court’s ruling, a reviewing court
cannot say there was an abuse of discretion.”)
Judgment affirmed. Boggs and Rickman, JJ., concur.
8