Belknap v. Belknap

• Decision Date: 09 September 2019
• Docket Number: A19A0808
• Citation: 833 S.E.2d 135,351 Ga.App. 748
• Court: Georgia Court of Appeals
• Parties: BELKNAP v. BELKNAP.

351 Ga.App. 748

833 S.E.2d 135

BELKNAP

v.BELKNAP.

A19A0808

Court of Appeals of Georgia.

September 9, 2019

Daniele Colette Johnson, Atlanta, for Appellant.

Andrew T. Mosley II ; Sliz Drake Estes & Bramblett, Ryan C. Bramblett, for appellee.

Dillard, Presiding Judge.

In 2011, Terry and Michelle Belknap divorced, and Michelle obtained primary custody of their two minor sons. Six years later, Terry filed a petition to modify custody and child support, seeking primary custody of the younger son on the ground that the child—who was now 14 years old—wanted to live with him. Michelle filed a response, and the trial court held a hearing, after which it denied the petition. On appeal, Terry argues that the trial court abused its discretion by misapplying the relevant statute, failing to modify child support, and granting Michelle's motion to compel discovery responses. For the reasons set forth infra, we affirm.

In considering the appeal of a child-custody decision, we view the evidence "in the light most favorable to the trial court's decision."¹ Importantly, 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."² And if there has been such a material change, the court should "base its new custody decision on the best interest of the child."³ Finally, we review a trial court's custody decision for an abuse of discretion.⁴

So viewed, the evidence shows that after Terry and Michelle divorced in 2011, Michelle obtained primary custody of their two minor sons, M. B. (born in 2001) and C. B. (born in 2003), and Terry retained a significant amount of parenting time. Nevertheless, after the divorce, Terry moved to Florida, while Michelle and the boys remained in the Atlanta area. But in April 2017, C. B.—who was now 14 years old—asked his father if he could move to Florida to live with him. As a result, on November 1, 2017, Terry filed a petition for modification of custody and child support in the Superior Court of DeKalb County. In doing so, Terry sought primary custody of C. B. based on his son's election to live with him, as well as an adjustment in his child-support obligations. And with the petition, Terry also filed an affidavit, in which C. B. stated his desire to live with his father in Florida.

Initially proceeding pro se , Michelle filed a response contesting Terry's petition and, shortly thereafter, served him with interrogatories and requests for production of documents. A little more than one month later, Michelle—now represented by counsel—sent Terry's counsel a letter, under Uniform Superior Court Rule 6.4 (B), seeking responses to her discovery requests that she claimed had been ignored or insufficiently answered.⁵ At that time, Michelle also served Terry with additional discovery requests. Subsequently, Michelle filed a motion to compel discovery, apparently unsatisfied with Terry's response to her letter; and a few weeks later, she filed a second motion to compel. On April 18, 2018, the trial court held a hearing on Michelle's motions to compel. And at the conclusion of that hearing, the court ordered Terry to provide the requested documents, particularly those concerning his life insurance policy.⁶ Nevertheless, the court reserved ruling on the issue of attorney fees related to the motions for the final hearing.

Subsequently, on June 21, 2018, the trial court conducted a final hearing on Terry's modification petition. And during that hearing, Terry testified regarding C. B.’s desire to live with him, and both he and his fianceé further testified as to why they believed the petition should be granted. In contrast, Michelle testified that she believed it was in C. B.’s best interest for her to retain primary custody. At the conclusion of the hearing, the trial court agreed with Michelle and denied Terry's petition. In addition, the court denied both parties’ requests for attorney fees. Approximately one month later, the court issued a written order memorializing its rulings. This appeal follows.

1. In his first two enumerations of error, Terry essentially contends that the trial court erred in denying his petition to modify custody.⁷ Specifically, he argues that the court misapplied OCGA § 19-9-3 (a) (5) by failing to honor his son's election to live with him despite finding him to be a fit parent. We disagree.

Determining whether the trial court misapplied OCGA § 19-9-3 (a) (5), of course, requires an examination of the relevant statutory text. So, tasked with interpreting statutory language, we necessarily begin our analysis with "familiar and binding canons of construction."⁸ First and foremost, in considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant."⁹ And toward that end, we must afford the statutory text its plain and ordinary meaning,¹⁰ consider the text contextually,¹¹ read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would,"¹² and seek to "avoid a construction that makes some language mere surplusage."¹³ In summary, when the language of a statute is "plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly."¹⁴

Turning to the statute at issue, OCGA § 19-9-3 (a) (5) provides:

In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.

And here, following the final hearing, the trial court considered C. B.’s affidavit stating his desire to live with his father, as well as Terry's testimony as to his son's reasons for the decision. But the trial court ultimately agreed with Michelle that it was in C. B.’s best interest to continue living with her, where he would (1) be close to his older brother and grandparents, (2) continue attending the school at which he was doing well, and (3) continue participating in the extracurricular activities that he enjoyed.

Nonetheless, Terry maintains the trial court misapplied OCGA § 19-9-3 (a) (5) by not honoring his son's election to live with him despite finding him to be a fit parent. But this contention is belied by the plain language of the statute. Neither the term "fit" nor "unfit" appears anywhere in the text of OCGA § 19-9-3, much less in paragraph (a) (5). To be sure, prior to the amendment of the statute in 2007 (which became effective in January 2008), it provided that "the right of a child 14 or older to select the parent with whom he wanted to live was controlling ‘unless the parent so selected [was] determined not to be a fit and proper person to have the custody of the child.’ "¹⁵ And under the current version of the statute, the election of a child 14 or older to live with one parent over the other is presumptive; but the superior court "may override the election if it determines that placing the child in the custody of the selected parent is not in the child's best interest."¹⁶ That is exactly what occurred here. The trial court found that maintaining the continuity in C. B.’s life, which remaining with his mother entailed, was in his best interest.¹⁷ And given these circumstances, we cannot conclude the trial court abused its discretion in denying Terry's petition for modification of custody.¹⁸

2. Terry also contends that the trial court abused its discretion by failing to modify child support even though the needs of the children had materially changed. This contention likewise lacks merit.

In his petition for modification of custody and child support, Terry requests primary custody over C. B. based on his son's election to live with him and further requests that the trial court "adjust child support in an amount that is compliant with the applicable child support statute." And during the final hearing, Terry's counsel opened her remarks by stating that the purpose of the hearing was her client's request for primary custody of C. B., and then added, "[o]f course, the child support is going to have to be adjusted in accordance with the child support statute." Then, after testifying about his desire to have C. B. live with him, Terry further testified that he and his attorney drafted two child-support worksheets, one of which contemplated C. B. living with him and his older son remaining with the mother. But notably, prior to the hearing, Terry filed three child-support worksheets, with the first two contemplating the scenarios mentioned in his testimony and the third contemplating a scenario in which the older son attained the age of 18 and C. B., again, would reside with his father.

After the close of the evidence, the trial court provided the following directive to both parties: "So first when you make your arguments, please lay out what you want me to do in relation to all the issues and then go into how you evaluate the evidence. I want each counsel to do that because it will make it easier for me. It gives me a roadmap of what we're trying to decide." Then, with regard to child support, Terry's counsel argued:

We're asking – I did two child support worksheets, one listing [Michelle] as the custodial parent for [the older son, M. B.] and the other listing my client as the custodial parent for [the younger son, C. B.]. Pursuant to those

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