Avren v. Cases)

• Decision Date: 16 May 2011
• Docket Number: S11A0688.,Nos. S11A0064,s. S11A0064
• Citation: 710 S.E.2d 130,289 Ga. 186
• Parties: AVRENv.GARTEN (two cases).
• Court: Georgia Supreme Court

289 Ga. 186

710 S.E.2d 130

11 FCDR 1466

AVREN

v.GARTEN (two cases).

Nos. S11A0064

S11A0688.

Supreme Court of Georgia.

May 16, 2011.

Hait & Eichelzer, Elizabeth J. Kuhn, Woodstock, for appellant.Kessler, Schwarz & Solomiany, Randall Mark Kessler, Atlanta, Marsh & Frost, Jessica Handley Frost, Marietta, David Alfred Webster, for appellee.BENHAM, Justice.

Appellant Jody Avren (Mother) and appellee Jay Garten (Father) were divorced in 2003. These appeals are from their most recent post-divorce litigation. In April 2010, the trial court found Mother in contempt of previous court orders, dismissed Mother's petition for contempt against Father, dismissed Mother's petition for modification of child support and visitation, denied and dismissed Mother's petition for modification of child custody, ordered Mother to pay the outstanding balance due the guardian ad litem appointed to represent the parties' minor son, and reserved the issue of Father's request for an award of attorney fees. See Case No. S11A0064. After granting Father's request for attorney fees in May 2010, the trial court denied Mother's motion to set aside the award of attorney fees in October 2010. See Case No. S11A0688.¹

1. In Case No. S11A0064, Mother contends the trial court abused its discretion when it found her in contempt for taking the parties' 11–year-old child to counseling. We will uphold the trial court's finding of contempt if there is evidence to support the trial court's determination that Mother wilfully disobeyed a prior court order. Pate v. Pate, 280 Ga. 796(3), 631 S.E.2d 103 (2006).

In the parties' consent final modification order entered in 2006, Father, a physician, was given final decision-making authority for the minor child with respect to health and medical issues. The trial court found Mother in contempt for disregarding Father's decision concerning the therapist to whom Mother took the child.² Mother acknowledged at the contempt hearing that she had taken the child to a therapist that Father disapproved and had sent the therapist's bills to Father for payment. Since there is evidence to support the trial court's determination that Mother wilfully disobeyed a prior court order, we do not disturb the trial court's finding of contempt.

2. Mother contends the trial court erred when, without hearing evidence on three of the four subjects of her petition, it dismissed her petition to hold Father in contempt and for modification of custody, child support, and visitation. The trial court held a hearing on Mother's petition and entered a written order which dismissed and denied Mother's petition “ pursuant to OCGA §§ 19–6–15, 19–9–3, and 19–9–24 and all other applicable law....” ³

Three of the four actions sought by Mother's petition were dismissable pursuant to OCGA § 19–9–24(b), which prohibits a legal guardian from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order. Counsel for Father submitted at the evidentiary hearing a calendar on which he had circled over 100 dates between March 21 and November 20, 2009, on which the scheduled visitation between Father and child had not taken place. Mother admitted there were times when she and the child left her home on scheduled visitation days prior to the closure of the two-hour window in which Father was to pick up the child, and there were occasions on which she did not overrule the child's reluctance or refusal to leave the house and meet his waiting father. Mother testified the child did not wish to visit with Father and she did not insist that he do so. However, “[t]he desires of children under 14 years of age in not wanting to visit their noncustodial parent is not sufficient to deny the noncustodial parent his or her rights of visitation.” Prater v. Wheeler, 253 Ga. 649, 650, 322 S.E.2d 892 (1984). Having found at the hearing that Mother had withheld visitation, the trial court did not err when, pursuant to OCGA § 19–9–24(b), it dismissed the contempt, visitation, and custody portions of Mother's petition and, consequently, did not permit Mother to present evidence on the merits of the dismissed claims.

OCGA § 19–9–24(b) does not prohibit a legal guardian who withholds visitation from bringing an action for modification of child support. “Child support is the right of the child and not of its custodian; ... The conduct of the custodian cannot deprive the child of this right to support, any more than the custodian can waive it for the child or contract it away. [Cits.] [OCGA § 19–9–24(b) ] does not provide otherwise.” Stewart v. Stewart, 160 Ga.App. 463–464, 287 S.E.2d 378 (1981). Instead, the trial court relied upon OCGA § 19–6–15(k)(2) in dismissing the portion of Mother's petition seeking modification of child support.

OCGA § 19–6–15(k)(2) provides that “[n]o petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent except [in certain situations not applicable here].” A purpose of the two-year limitation is “the protection of the parties from excessive litigation over the same issues within the two-year period.” Griffin v. Griffin, 248 Ga. 743, 744, 285 S.E.2d 710 (1982) (addressing Ga.Code Ann. § 30–220(a), the precursor of the two-year limitation found in OCGA § 19–6–19(a) on petitions for modification of spousal support). Mother filed the current petition for modification of child support in November 2009, eleven months after the trial court's dismissal in December 2008 of an earlier petition for modification of child support and visitation filed by Mother. The trial court's entry of an order dismissing a support-modification petition is a “final order” since it is a judicial action that terminates the litigation with prejudice and is imposed involuntarily upon a petitioner. See Taylor v. Taylor, 182 Ga.App. 412, 356 S.E.2d 236 (1987). Since two years had not elapsed from the December 2008 court order disposing of an earlier petition for support modification filed by Mother, the trial court did not err when it dismissed under OCGA § 19–6–15(k)(2) the portion of the 2009 petition seeking modification of the child-support award.

3. Mother argues the trial court erred as a matter of law when it did not allow the guardian ad litem to interview the child's therapist without Father's consent. However, Mother endorsed a limitation on the guardian's contact with the therapist when she and Father consented to the entry of the modified consent order appointing the guardian ad litem. The order, entered with the consent of counsel, provided that the guardian was not authorized to speak to the therapist to whom Mother had taken the child or any other therapist the child previously had seen without the permission of both parents or the entry of a court order. An order entered with the consent of counsel is binding on the client in the absence of fraud, accident, mistake, or collusion of counsel and, in the absence of such a showing, a party cannot complain of a consent order. Rieffel v. Rieffel, 281 Ga. 891(3), 644 S.E.2d 140 (2007).

4. Mother complains the trial court abused its discretion when it ordered that she pay the remainder of the fees owed the guardian ad litem. In its 2010 order, the trial court noted that each party had paid $2,692 to the guardian and ordered Mother to pay the outstanding balance of $3,683.50. Mother asserts she was the prevailing party in the contempt action brought by Father, so she should be able to recoup the costs of litigation under OCGA § 9–11–54(d), and sees error in the trial court's failure to consider the financial circumstances of the parties. Assuming OCGA § 9–11–54(d) is applicable (but see OCGA § 19–7–50 governing payment of fees to a guardian ad litem), it would not be applicable to this case as Mother was not the prevailing party since all three counts of Father's petition alleging contumacious conduct of Mother were upheld by the trial court. Furthermore, there is no statutory requirement that the trial court consider the parties' relative financial circumstances when apportioning each party's share of the guardian's fees pursuant to a consent order, and we decline to impose such a requirement. Compare OCGA § 19–6–2(a)(1).

5. Lastly, Mother contends the trial court erred when it did not apply the rule of sequestration to an unidentified woman sitting in the courtroom. Father's counsel stated he was not going to call the woman as a witness, Mother's counsel said she “might” call her, and the trial court ascertained the woman was not under subpoena. The woman did not testify. OCGA § 24–9–61 gives to a party the right “to have the witnesses of the other party examined out of the hearing of each other[,]” subject to the trial court's discretion to make exceptions to the rule. Welch v. State, 251 Ga. 197(7), 304 S.E.2d 391 (1983). Putting to the side the fact that Mother sought to invoke the rule against a witness she might call instead of a witness for the other party, where the target of the invocation of the rule of sequestration does not testify, the trial court's failure to enforce the rule against that person is not an abuse of discretion. Welch v. State, supra, 251 Ga. at 201, 304 S.E.2d 391. Since the unidentified woman did not testify, the trial court did not abuse its discretion.

Case No. S11A0688.

This appeal focuses on whether the trial court had jurisdiction to enter the award of attorney fees in May 2010 while an application for discretionary appeal was pending in this Court, and whether Mother had a right to appeal directly the trial court's denial of her motion to set aside the attorney-fee award.

Following the entry of the trial court's judgment in April 2010, Mother filed both a notice of appeal and an application for...