Hardin v. Hardin

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, 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 18, 2016
In the Court of Appeals of Georgia
A16A1210. HARDIN v. HARDIN.
PETERSON, Judge.
Douglas Andrew Hardin (the “father”) appeals the trial court’s order permitting
Rita Hardin a/k/a Rita Barbagallo (the “mother”) to resume visitation with her
youngest son in the form of weekly therapeutic sessions. He argues the trial court
erred by entering a self-executing change of visitation, by failing to include a
parenting plan with the order, and by failing to consider the best interests of the child.
Because we find the court’s order to be a self-executing change of visitation of the
sort prohibited under Georgia law, we vacate the order.
“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. And where
there is any evidence to support the trial court’s ruling, a reviewing court cannot say
there was an abuse of discretion.” Ezunu v. Moultrie, 334 Ga. App. 270, 272 (779
SE2d 44) (2015) (punctuation and citation omitted).
So viewed, the record shows the father filed a motion to modify custody and
visitation, seeking sole physical custody and limitation of the mother’s visitation in
accordance with the recommendation of a guardian ad litem. The mother’s regular
visitation privileges with her children were later temporarily suspended by consent
of the parties.1 Before deciding the father’s motion, the trial court elected to gather
more information, including a professional evaluation. In late 2014, the professional
evaluator submitted his report, in which he noted significant concerns about the
mother’s mental health and concluded that he did not believe it to be in the best
interests of the children to permit visitation without the mother first receiving
substantial treatment. The children also submitted statements to the court that they did
not wish to have visitation or counseling with their mother.
In May 2015, the court held a hearing acknowledging the report and issued a
final ruling. Although no change in the mother’s condition is apparent from the
record, the trial court entered an order on December 17, 2015 permitting the mother
1
The consent order between the parties was entered in 2012, and the mother
had not had visitation with the children since.
2
to resume visitation with her youngest son2 in the form of weekly therapeutic sessions
after she completed eight weeks of counseling on her own “for the following two
months.” The trial court order provided that
[t]he mental health professional shall be provided the report of [the
professional evaluator], and at the conclusion of the two months shall
make certain recommendations as to any further treatment and other
terms and conditions regarding mental health which shall be followed
by [the mother]. Upon a good faith completion of eight weeks, and a
report to this Court which evidences completion of this therapy and [the
mother]’s progress, [the mother] shall be entitled to initiate visitation
with the younger child . . . by engaging a child psychologist to supervise
and assist in weekly therapeutic sessions with [the younger child]. This
shall continue until the child reaches the age of majority.
The court stated that it believed it to be in the “long-term best interest of the child”
to attempt to repair the child’s relationship with the mother. The father contends, and
the mother does not dispute, that on December 24, 2015 — just seven days after entry
of the trial court’s final order — the mother’s therapist3 submitted a certificate of
2
The trial court acknowledged the older child turned 18 in May 2015.
3
The father complains that the mother’s therapist who submitted the certificate
of completion also served as her expert witness.
3
completion, though this document does not appear in the record before us. This
appeal followed.
1. The father argues that the trial court erred by entering an impermissibly self-
executing order that provides for an automatic change of visitation. We agree.
“Visitation privileges are, of course, part of custody.” Wrightson v. Wrightson,
266 Ga. 493, 496 (3) (467 SE2d 578) (1996) (citation and punctuation omitted).
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.”
Lester v. Boles, 335 Ga. App. 891, 892 (1) (782 SE2d 53) (2016) (citing Dellinger v.
Dellinger, 278 Ga. 732, 733 (1) (609 SE2d 331) (2004)). 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[.]” Id.In Weaver v. Jones, 260 Ga. 493 (396 SE2d 890) (1990), and Pearce v. Pearce,
244 Ga. 69 (257 SE2d 904) (1979), our Supreme Court upheld automatic custody
4
change provisions that contemplated that an older child, upon reaching age 14, may
choose the parent with whom the child wishes to reside. See Scott v. Scott, 276 Ga.
372, 373 (578 SE2d 876) (2003) (discussing Weaver and Pearce). And in Lester, we
upheld a self-executing provision that altered custody when the child began first
grade, noting that the provision was not invalid because the change in custody was
not conditional upon an event that may never occur and was “not an arbitrary change
that may or may not affect the child’s best interests at some unknown date[.]” See
Lester, 335 Ga. App. at 893 (1).
But other self-executing provisions that create an automatic change of custody
based solely on a custodial parent’s relocation within the country or remarriage, or
a counselor’s determination of readiness — without regard to the child’s best interests
at the time of the change — have been rejected. See Johnson v. Johnson, 290 Ga. 359,
359-60 (721 SE2d 92) (2012) (reversing trial court judgment with direction that the
trial court strike the self-executing provision of the decree that allowed termination
of supervised overnight visits to occur based on a counselor’s determination of
readiness); Dellinger, 278 Ga. at 734-36 (1) (609 SE2d 331) (2004) (reversing trial
court judgment with direction that the trial court strike the self-executing provision
of the decree that altered custody if the mother moved); Scott v. Scott, 276 Ga. 372,
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376 (578 SE2d 876) (2003) (“Remarriage and relocation directly affect a child but
they do not automatically warrant a change in custody.”). “It is the trial court’s
responsibility to determine whether the evidence is such that a modification or
suspension of custody/visitation privileges is warranted, and the responsibility for
making that decision cannot be delegated to another, no matter the degree of the
delegatee’s expertise or familiarity with the case.” Wrightson, 266 Ga. at 496 (3)
(citation and punctuation omitted).
The question for this Court to resolve, then, is whether the self-executing
provision challenged here is the sort prohibited under Georgia law. A review of the
caselaw 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. See, e.g., Johnson, 290 Ga. at 359-60. 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. See Dellinger, 278 Ga. at 735 (automatic change in
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visitation without any regard to the circumstances existing in the children’s lives at
the time of the change is “utterly devoid of the flexibility necessary to adapt to the
unique variables that arise in every case, variables that must be assessed in order to
determine what serves the best interests and welfare of a child”).
The mother argues that the challenged provision here is akin to that examined
in Lester because there appears to be a date determinative for the change in visitation
— her completion of eight weeks.4 And she argues that the trial court considered the
best interests of the child when it entered the order, as expressly acknowledged
therein, noting that an attempt to repair the child’s relationship with the mother would
be in the “long-term best interest of the child[.]” But as the mother points out in her
appellate brief, “[t]he true potential vice in this sort of self-executing change, as
Father and the decided cases envisions that evil, is delegation of judgment to
another.” Indeed, we have instructed trial courts to strike such provisions in those
cases in which the trial court has delegated its authority to determine the timing of
4
The provision could also be interpreted as the trial court retaining jurisdiction
to review the mother’s progress as reported to it and determine whether it is sufficient
to trigger visitation. However, that interpretation is not available to us given the
court’s designation of the order as “final,” because the trial court, in so designating
its order, demonstrated its intent to divest itself of jurisdiction to do any further
analysis of the mother’s compliance with its order.
7
custody transitions or modifications to a counselor. See Wrightson, 266 Ga. at 495-96(3), Johnson, 290 Ga. at 359-60. That is essentially what has happened here.
Under the terms of the order at issue, the counselor is to “make certain
recommendations as to any further treatment and other terms and conditions
regarding mental health which shall be followed by [the mother].” Upon a “good faith
completion of eight weeks” of therapy, a report is to be made to the trial court (it is
unclear by whom) evidencing completion of this therapy and the mother’s progress.
Once these events have occurred, the mother is entitled to initiate visitation with the
child in the form of weekly therapy sessions. Under the trial court’s order, this
transition in custody is automatic, and although it is unclear precisely who has the
ultimate responsibility for reviewing the report to determine whether it sufficiently
evidences the mother’s “progress” and completion of the required therapy, it is clear
that it is not the court. This is troubling for precisely the reason the father argues in
his appeal — the mother may not actually have made “progress” in her therapy in the
sense that the trial court intended, or she may not be complying with the counselor’s
additional treatment recommendations or the rest of the court’s order. Indeed, the
mother attempted to resume visitation almost immediately following entry of the
order, despite not having complied with its instruction that she complete eight weeks
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of therapy “for the following two months.”5 This makes the event triggering the
automatic change in visitation arbitrary, with “only a tangential connection” to the
child’s best interests. Lester, 335 Ga. App. at 893 (1). Thus, the order lacks “the
flexibility needed to adapt to the unique variables that must be assessed in order to
determine what serves the best interests and welfare of a child.” Lester, 335 Ga. App.
at 892-93 (1) (citation and punctuation omitted). For this reason, we find that this
provision in the trial court’s order constitutes an abuse of discretion, and accordingly,
we vacate the order and remand the case to the trial court to revisit the issue and
provide a new order on the father’s motion consistent with this opinion.
2. Because of our holding in Division 1, we need not address the father’s other
enumerations of error.
Judgment vacated and case remanded. Phipps, P. J., and Dillard, J., concur.
5
The mother argues that she was able to anticipate the amount of court-ordered
therapy and completed it in advance, but points to nothing in the record supporting
her argument.
9