Oxford v. Fuller

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 11, 2016
In the Court of Appeals of Georgia
A16A1056. OXFORD v. FULLER.
RICKMAN, Judge.
A mother appeals from a trial court order modifying custody of her minor
children from joint legal and physical custody shared with the childrens’ father to a
custody arrangement whereby primary physical custody and final decision making
authority alternate annually and automatically. The mother contends that the trial
court erred by entering the custody order because it is self-executing without making
a determination as to whether the custody change is in the best interests of the
children and there is no evidence that the terms of the order are in the best interests
of the children. For the following reasons, we reverse the judgment and remand for
further proceedings consistent with this opinion.
On appeal from a trial court’s determination in a custody dispute,
we defer to that court in all matters of fact: When considering a dispute
regarding the custody of a child, a trial court has very broad discretion,
looking always to the best interest of the child. This Court will not
interfere 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 there was an abuse of discretion.
(Citation and punctuation omitted.) Bankston v. Washington, 332 Ga. App. 29 (771
SE2d 726) (2015).
So viewed, the record shows that there are three children at issue, twin girls
who were born on November 15, 2006 and a boy born on June 15, 2009. In a June
2012 divorce compromise and settlement agreement, the parties agreed that they
would share joint legal and physical custody of the children and follow a week-to-
week custodial arrangement schedule. There was a provision in that agreement that
the mother “agree[d] to live and reside in Upson County, Georgia, or any County
which is contiguous to Upson County, until further order of the [trial court].”
In January 2013, the mother moved to Coweta County with her current husband
because she was offered more lucrative employment. In February 2014, the mother
filed, in Upson County, the instant petition for a change of custody and child support,
alleging, inter alia, that her move was a change in circumstances materially affecting
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the welfare of her children. In response to that petition, the father filed a petition for
modification of custody in Coweta County. The father’s petition was transferred to
Upson County.
At the April 2015 trial on both petitions, the court heard testimony that since
the divorce, the mother had attended nursing school, which increased her employment
opportunities, and she had remarried. Insurance for the children is provided by the
mother and her new husband. The trial court heard testimony that the mother was
more financially stable than the father.
Both of the girls testified at the trial that they liked staying with both parents.
One of the girls testified that when she was with her father she could not speak with
her mother as much as would like, and that her father would not let her go home with
her mother when she was injured.
The trial court heard testimony from the mother and the father that the father
would not allow the children to participate in extracurricular activities because of the
week-to-week custody arrangement.
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The trial court heard testimony from two guardians ad litem, Elizabeth Hiatt
and Elizabeth Fordham.1 Hiatt testified that her “recommendation was for [the
mother] to have custody.” Hiatt based this recommendation on her home evaluation,
“circumstances regarding the children,” and that “the children are taken care of
primarily by [the mother].” However, Fordham testified that her recommendation was
that “[the mother’s] request to have the children full-time be denied. At a minimum
. . . the arrangement should stay the way that it is.” Fordham further testified that she
would not object to the father being primary custodian. Fordham testified that she had
never interviewed the mother, but she recognized that the mother “had a really good
job, and that [the mother] was in a really good house, and that she’s been married, and
their marriage was stable.” Fordham acknowledged that Hiatt had been in both
parties’ homes while she had not, and she agreed that generally a person who
interviews both parents and sees both of their homes would have a better
understanding of the comparison between the two.
Prior to the close of the evidence the trial court stated,
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Hiatt was appointed to investigate the mother and Fordham was appointed to
investigate the father.
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[T]he children shouldn’t lose by saying oh, my gosh, we’re only going
to see mommy every other weekend. That can still happen. The kids
shouldn’t lose by saying oh, my gosh, we’re only going to get to see dad
every other weekend. You know, those would both be horror stories for
you. But, logistically, the week to week is also something that is a little
bit difficult, okay? So, here is what I’m thinking about doing. I’ve done
this once before and never heard back from the people that it didn’t
work. And, I’ve seen people agree to this once before, and never heard
back that it didn’t work. And, that is, instead of dividing custody week
to week, divide it year to year. And, the reason that could happen is
because we now have, I think, a common core curriculum. And, I think
the curriculum all across Georgia is about the same . . . [T]he kids are
going to have friends in both places.
The trial court asked the attorneys if they had discussed the possibility of a
year-to-year custody arrangement and the father’s attorney responded, “No, sir.” The
trial court replied, “No surprise. That’s why I do what I do.” At the conclusion of the
evidence, the mother’s attorney expressed concerns about the proposed year-to-year
custody arrangement, including concerns about the children changing schools every
year. The trial court responded, “[A]ren’t you ignoring that there are also benefits in
being a new kid in school?” The trial court further stated, “Show me how [the year-to-
year custody arrangement] is harmful.”
Following the trial, the court entered an order providing that,
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[The] [f]ather shall have primary physical custody of and final decision
making authority for said minor children beginning July 1, 2015, at noon
until July 1, 2016, at noon at which time the [f]ather shall have primary
physical custody and final decision making authority for the minor
children until July 1, 2017, at [n]oon; and shall continue this annual
alternation of primary physical custody and final decision making
authority each year changing over on July 1st at [n]oon for said minor
children until each respectively attains the age of eighteen years,
graduates high school, marries or otherwise becomes emancipated.
It is from this order that the mother now appeals.
1. The mother contends that the trial court erred by entering the custody order
because it is self-executing without making a determination as to whether the custody
change is in the best interests of the children. We agree.
“Self-executing change of custody provisions allow for an ‘automatic’ change
in custody based on a future event without any additional judicial scrutiny.” Scott v.
Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003). Our Supreme Court has held that,
“[w]hile self-executing change of custody provisions are not expressly prohibited by
statutory law . . . any such provision that fails to give paramount import to the child’s
best interests in a change of custody as between parents violates this State’s public
policy as expressed in OCGA § 19-9-3.” Id. at 375.
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The trial court’s order changes the parent who “will have primary physical
custody of and final decision making authority” for the children each year on July 1st
until each of the children “attains the age of eighteen years, graduates high school,
marries or otherwise become emancipated” without any “determination whether the
custody change is in the best interest of the parties’ [children] at the time the change
would automatically occur.” Scott, 276 Ga. App. at 377. In the absence of an annual
hearing prior to the change in custody, “[the order] violates this State’s public policy
as expressed in OCGA § 19-9-3 that a trial court take into account the factual
situation at the time the custody modification is sought, with the court’s ‘paramount
concern’ always remaining the best interests and welfare of the minor child.”
(Citation and punctuation omitted.) Bankston, 332 Ga. App. at 35 (2) (reversing a
self-executing provision automatically changing custody after 18 months). See Scott,
276 Ga. at 377 (vacating divorce decree with direction that the trial court set aside
provision therein which automatically transferred physical custody to the father in the
event the mother moved outside of her county of residence); see also Dellinger v.
Dellinger, 278 Ga. 732, 736 (1) (609 SE2d 331) (2004) (reversing trial court’s order
imposing a self-executing change in visitation should the mother move more than 35
miles outside her county of residence). Compare Lester v. Boles, 335 Ga. App. 891,
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893 (1) (782 SE2d 53) (2016) (finding no abuse of discretion in self-executing
provision that was not open-ended or arbitrary and “gave paramount import to the
child’s best interests”) (punctuation and footnote omitted). Therefore, we reverse the
trial court’s order.
2. The mother contends that the trial court erred by entering the custody order
because there was no evidence that the terms of the order are in the best interests of
the children. We agree.
Pursuant to OCGA § 19-9-3 (a) (2), when determining the issue of custody of
minor children, “[t]he duty of the judge . . . shall be to exercise discretion to look to
and determine solely what is for the best interest of the child and what will promote
the child’s welfare and happiness and to make his or her award accordingly.”
In the instant case, the effect of the trial court’s order is to require the children
to change schools, homes, school friends, and extracurricular activities every year.
There was no evidence presented that these changes would be in the best interest of
the children. Both guardian ad litems had finished their testimony before the trial
court pronounced that it was considering an annual change in custody. Neither
guardian ad litem recommended an annual change in custody or testified as to what
effect an annual change in custody would have on the children. Furthermore, while
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the trial court believed that there are benefits to being the new kid in school, no
evidence was presented that changing schools every year would be in the best interest
of these children.
Because there is no evidence in the record to support a finding that the best
interests of the children would be served by the annual change in custody, we reverse
the trial court’s order and remand for the trial court to further consider this issue
consistent with this opinion. See Lifesy v. Lifesy, 256 Ga. 613 (3) (351 SE2d 637)
(1987) (“There is no evidence in the record that might support findings that the best
interests of the children will be served by requiring that they change residences,
school systems, circles of friends, activities, and states on a yearly basis.”); see also
Steed v. Deal, 225 Ga. App. 35 (3), (482 SE2d 527) (1997) (‘[T]here is no evidence
in the record that might support a finding that the best interest of the child will be
served by requiring that he change residence, school system, special education
teachers, doctors, therapists, circle of friends, activities, and states on a yearly basis.”)
Judgment reversed and case remanded. Barnes, P. J., and Boggs, J., concur.
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