Blackburn v. Blackburn

• Decision Date: 06 September 1983
• Docket Number: No. 66682,66682
• Citation: 308 S.E.2d 193,168 Ga.App. 66
• Parties: BLACKBURN v. BLACKBURN.
• Court: Georgia Court of Appeals

Page 193

308 S.E.2d 193

168 Ga.App. 66

BLACKBURN v. BLACKBURN.

No. 66682.

Court of Appeals of Georgia.

Sept. 6, 1983.

Rehearing Denied Sept. 21, 1983.

Certiorari Denied Oct. 6, 1983.

Ozell Hudson, Jr., Statesboro, John H. Ruffin, Jr., Augusta, John L. Cromartie, Jr., William J. Cobb, Atlanta, Mary R. Carden, Gainesville, for appellant.

R. Simmons Lanier, Statesboro, for appellee.

DEEN, Presiding Judge.

The case of Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982) concerned the dispute over the custody of a minor child between the natural mother, Kathleen Blackburn, and the paternal grandmother. Finding that the paternal grandmother, who had petitioned for custody, had failed to show by clear and convincing evidence the parental unfitness of the child's mother, the Supreme Court reversed the trial court's award of custody to the grandmother. Mark Blackburn, the child's father, subsequently petitioned for and was awarded custody by the Superior Court of Burke County, from which award the mother appeals.

Mark and Kathleen Blackburn were married on October 31, 1977, in New Haven, Connecticut. In September 1978 they moved to Minnesota to be with the appellant's family during the later stage of her pregnancy. After the birth of Nicholas on December 1, 1978, they relocated to Millen, Georgia, where they resided with the appellee's parents. Shortly thereafter, Kathleen Blackburn was hired as a dietician at the Jenkins County Hospital, earning $175 weekly; approximately 3 months passed before Mark Blackburn obtained employment with the Georgia Power Company at its Plant Vogtle. Up to that point he had worked only sporadically throughout the marriage. The parties separated in late spring 1979 and eventually divorced on July 17, 1979, with Kathleen Blackburn being awarded custody of Nicholas and Mark Blackburn being ordered to pay $35 weekly child support.

Following the divorce Mark Blackburn continued to reside with his parents and to work for Georgia Power Company. His work record was excellent, resulting in his selection as employee of the month on one occasion. Sometime in 1980 he joined an electrical union and enrolled in its 4-year apprentice program, which featured a pay raise every 6 months upon his satisfactory completion of the educational and training requirements. At the time of the trial, his salary was $8.00 per hour, with an ultimate, forecasted salary of $13.35 per hour. He also was selected the most outstanding student of his class for 2 consecutive years.

Mark Blackburn's past was not uncheckered. In 1977 he was convicted of simple battery in Connecticut. Around the time of the divorce in 1979, he was arrested for theft by taking automobile tires, although the victim declined to prosecute after restitution was made. (Kathleen Blackburn was with the appellee at the time of the arrest, and, ironically, the arresting officer, Gene Wright, ultimately became her paramour and fathered her illegitimate daughter.) Subsequently, apparently in a dejected mood caused by an unsuccessful romance, appellee broke a whiskey bottle over the head of a man he found with his ex-girlfriend in a lounge. Charged with 2 counts of aggravated assault, the appellee pleaded guilty and he was sentenced to 1 year probation and restitution for medical expenses. He also received psychiatric treatment following the incident.

In 1980 he moved to Augusta, Georgia, and lived in an apartment for approximately 1 year before marrying his present wife, Marynell. He currently resides in a rented house with his wife and his 16 and 13 year old stepdaughters. His wife also is employed, earning $150 weekly gross wages, and she receives $50 per week in child support. It appears that Mark Blackburn has striven to develop a wholesome family unit by devoting much of his time and attention to the stepchildren. He and his new family have attended church together regularly for the past year.

The appellee regularly exercised his visitation rights while the appellant had custody of Nicholas. He also made the child support payments to the appellant required by the divorce order regularly in 1979, much of 1980, and sporadically in 1981. The appellee's mother, of course, had legal custody of Nicholas from late 1981 until November 1982.

The appellant has changed her residence 7 times since the dissolution of the marriage. Initially she moved in with a co-worker at the Jenkins County Hospital. In August 1979 she rented a mobile home, where she remained for 4 to 5 months until the landlord disconnected the utilities because the appellant had failed to pay any rent for several months. (The landlord testified that upon inspecting the premises approximately 2 weeks following the appellant's removal, he discovered dirty dishes, soiled diapers on the floor, and a large amount of spoiled food in the refrigerator.) The appellant then moved to the Congress Motel to await the opening of the Millen Villa Apartments. She eventually obtained an apartment in Millen Villa and remained there from July 1980 to July 1982. Since July 1982 the appellant has changed residences 3 times, currently living in another rented mobile home. Despite the testimony of the landlord/owner of the previous mobile home, most of the evidence indicated that the appellant maintained adequate housekeeping habits.

The appellant had resigned her job at the hospital prior to moving into the Millen Villa apartment. Her subsequent employment history includes working at a poultry processing plant and her current job managing a record store in Burke County with a net weekly salary of $115.

While residing at the Congress Motel, the appellant was frequently seen in the company of men late at night, often with Nicholas. After her relationship with Gene Wright developed, Wright frequently visited the appellant at her Millen Villa apartment, although these visits were always brief, usually lasting only 15-30 minutes. The two were also seen on a number of occasions behind a Millen public school, hugging each other and lying in the front seat of a car, in the presence of Nicholas. The appellant never visited Wright's home, and she denied knowing at the time she dated him that he was married. The appellant's pregnancy resulted from this relationship.

The appellant's current paramour, Willie Boyd, has spent the night with her on more than one occasion. On February 23, 1983, approximately 2 weeks before the trial, the Burke County Department of Family and Children Services received a report that Nicholas had been beaten. There was some evidence implicating Boyd in the beating, but the Department of Family and Children Services had not completed its investigation because Boyd, having been recently incarcerated for DUI, speeding, and presenting false identification, had been unavailable to interview. The investigating caseworker did not, however, believe that Nicholas was in any danger and concluded that protective custody was unnecessary. At trial Boyd did admit to having spanked Nicholas on another occasion as punishment for Nicholas's reference to Boyd with a racially derogatory term. Boyd has also fought with and pushed the appellant to the ground in the presence of Nicholas.

When the appellant worked at the Jenkins County Hospital, she had to keep Nicholas with her from 6:30 to 8:00 a.m. because the babysitter would not take the child earlier. During that time the child was left on the dining room floor and not closely supervised. Because there was no playground, Nicholas was also allowed to play in the parking lot of the Millen Villa apartments, although there seems to have been some understanding between the apartment complex residents to take turns watching over the children. The appellant's various child care arrangements while she worked usually were adequate, but on occasion she failed to provide the babysitter with a proper change of clothing for child.

Dr. Virgil Abreu testified that from 1979 until June 1981 he had treated Nicholas for frequent gastrointestinal and respiratory ailments. Dr. Abreu noted that frequent respiratory ailments were common for small children, but he still felt that the frequency suffered by Nicholas was abnormal. In his opinion, being left on the hospital's dining room floor exposed the child to a greater risk of disease; he also believed that consumption of baby formula past the formula's expiration date could have contributed to the child's gastrointestinal problems. Dr. Abreu, noting that Nicholas did not gain a pound from February to June 1981, felt that the child's growth also had not been normal.

The appellant often allowed the appellee's mother to keep the child when he was ill until he recovered. Nicholas also gained 2 pounds between June 26, 1981, and August 13, 1981, after being placed in the custody of his grandmother.

Shortly before the trial, Nicholas was examined by 2 other pediatricians, Dr. Gerson Avonovitz and Dr. Monica Green. Both physicians found the child healthy with no signs of physical abuse, and neither agreed with the general conclusions of Dr. Abreu.

Since her divorce from the appellee, the appellant, in addition to having an illegitimate child, has had an abortion and, as late as August 1982, been treated for gonorrhea. It does not appear that the appellant has had any other significant medical problems. She underwent a psychiatric examination by Dr. Lloyd Baccus on February 1, 1983, and Dr. Baccus considered her to be emotionally stable and capable of caring for her children. The appellant does not maintain any close ties with her own family.

The trial court concluded that it was in the best interests of the child to place him under the custody of the appellee. On appeal, Kathleen Blackburn contends that the court erred in finding that the appellee had not earlier relinquished his parental power and therefore applied the incorrect legal standard in awarding custody; that the appellee's action was barred by...