Bridger v. Franze, A18A1230

• Decision Date: 19 October 2018
• Docket Number: A18A1230
• Citation: 348 Ga.App. 227,820 S.E.2d 223
• Parties: BRIDGER v. FRANZE.
• Court: Georgia Court of Appeals

348 Ga.App. 227

820 S.E.2d 223

BRIDGER

v.FRANZE.

A18A1230

Court of Appeals of Georgia.

Decided October 19, 2018

Reconsideration Denied November 15, 2018

Warner Bates McGough McGinnis & Portnoy, Nancy I. Jordan, Atlanta, for appellant.

Martin J. Franze, pro se.

Gobeil, Judge.

On appeal from the trial court’s grant of joint legal custody to the parents of a child, the mother, Betsy Bridger, argues that the court abused its discretion in refusing to award her sole physical and legal custody; in including a self-executing change of custody provision in its parenting plan; in its calculation of child support; and in failing to award her past child support expenses and attorney fees. We affirm the trial court’s award of joint physical and legal custody as well as the court’s refusal to award attorney fees, but we reverse the award of child support and the portion of the judgment containing the self-executing change in custody and remand for further proceedings on those issues.

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.

Williams v. Williams , 295 Ga. 113, 113 (1), 757 S.E.2d 859 (2014) (citations and punctuation omitted). "We are mindful that the Solomonic task of making custody decisions lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility." Bankston v. Warbington , 332 Ga. App. 29, 29-30, 771 S.E.2d 726 (2015) (citation and punctuation omitted).

Thus viewed in favor of the trial court’s judgment, the record¹ shows that the mother and father became involved in a romantic relationship in December 2011, while both were living in Colorado. After a brief period in North Carolina, the mother returned to Colorado in March 2014, after which she learned that she was pregnant. When the father told the mother that she "could just disappear," the mother notified Colorado police, at which point she learned of prior police reports implicating the father in sexual assaults against other women. After a second period in North Carolina, the mother returned to Colorado in November 2014 at the father’s request, but could not find suitable work as a nurse anesthetist. The child at issue, a girl, was born on December 1, 2014. Both mother and father signed the child’s birth certificate.

In the months after the child’s birth, the mother found work in California as a travel nurse anesthetist. The mother, the father, and the child moved to California and hired a nanny. On one occasion when the nanny could not come to work, the father left the child in her stroller on the sidewalk outside the parties’ home while he went inside to charge his phone. In June 2015, the family moved back to North Carolina. Three months later, the mother and child moved to Atlanta, where the mother began a permanent position at a surgery center. In November 2015, the father arrived in Atlanta, at which point the relationship between the parties deteriorated (for example, after the mother attempted to correct the father’s parenting, the father insulted the mother, the mother slapped the father, and the father walked away with the child, at which time the mother called police to the scene).²

After a holiday visit to Colorado, the mother and child returned to Atlanta in early 2016. In the weeks that followed, the parties engaged in disputes as to the father’s ability to watch the child at daycare via remote camera, his request to pay the child’s daycare expenses, and his deposits into and withdrawals of money from the mother’s bank account.

In March 2016, the father filed the instant verified petition for legitimation, joint legal and secondary physical custody, visitation, name change, and child support. After a DNA test confirmed that the child was the father’s biological child, the parties agreed to the appointment of a guardian ad litem (GAL), who supervised the father’s visitation of June 21, 2016. Following this visit, the GAL documented incidents including the father’s allowing the child to stand too close to a batting cage net, giving her a stemless wine glass to drink out of, which the GAL feared could have broken and injured the child, and allowing her to wander around the father’s home unsupervised, at the end of which she was found chewing on window blind cords. The GAL also observed the father display positive parenting behaviors, including fostering independence and "teaching her verbally."

On the GAL’s recommendation, and with the father’s agreement, a psychologist supervised the father’s next three visits, after which the GAL recommended that the father be given some unsupervised visits beginning in September 2016. After a status conference held on October 20, 2016, the father attempted to pick up the child from school a day before he was authorized to do so, which alarmed both the school administrators and the mother. At a mediation session held on October 24, 2016, the father’s counsel withdrew from the case, and negotiations between the parties ceased.

On December 15 or 16, 2016, the mother arrived at the father’s home and saw that the child was carrying an open jar of gummy fish oil supplements. When the mother asked how many gummies the child had eaten, the father replied, "only one or two." Shortly afterward, however, the child vomited between 15 and 20 gummies. The mother took the child to the pediatrician, and the pediatrician reported the incident to the Department of Family and Children Services; and, the GAL then revoked the father’s unsupervised visitation. The father’s last contact with the child before the August 2017 bench trial was during a shopping trip in December 2016 in the company of the mother’s parents.

At the bench trial, and in addition to the evidence outlined above, the mother presented evidence that the father had failed to pay child support consistently or appropriately from January 2016 until the trial and supporting her request for $2,080.00 in monthly child support. The mother also presented documentary evidence to support her claim for attorney fees and expenses in the amount of $116,598.92. She further argued that in light of the father’s effective abandonment of both the child and the litigation he had initiated, she should be awarded sole custody.

The trial court later entered a final order finding in relevant part that it was "in the best interest of the minor child for the parties to have joint legal and physical custody," with the mother "being the primary physical custodian"; that based on the mother’s child support worksheet and the father’s failure to submit the same, the mother’s income was $15,100 per month and her child care expenses, including health insurance premiums, totaled $1,034.74 per month; and that the mother’s "insistence" that the father’s petition be denied unless she was awarded sole legal and physical custody had "unnecessarily prolonged [the] proceedings." The trial court then stated its conclusions of law, including that under OCGA § 19-9-3, it was "in the best interest of the child that the [p]arties be awarded joint legal and physical custody of the child, with the mother being the primary custodian and [the] [f]ather having parenting time as outlined in" the permanent parenting plan attached to the order, which specified that "if the [f]ather should relocate to the Atlanta area, the parties shall have joint [physical] custody." The court also held that the father should pay the mother $1,357.00 per month in child support, that the mother should continue to pay the child’s health insurance costs, and that the mother’s request for reimbursement of past child support expenses and attorney fees was denied. This appeal followed.

1. The mother first argues that the trial court abused its discretion in failing to award her sole physical and legal custody of the child because the evidence demanded such an award and that it specifically erred in its factual finding that the GAL had recommended that the father could begin unsupervised parenting time with the child. We disagree.

As a preliminary matter, the record shows that the GAL did at one point permit the father to begin unsupervised visitation (before it was revoked in the wake of the fish oil gummies incident). The trial court’s statement about the father’s right to begin unsupervised parenting time came at the beginning of its order as part of a recitation of the factual background of the case, and was not incorrect when viewed in the context of the entire record. Construing the record, including the trial court’s order, in favor of the judgment, as we are required to do, we find no error.

We are not entitled to substitute our own judgment for that of the trial court on the question of whether joint custody was in the child’s best interest. On the contrary, there was some evidence in the record, including the father’s positive interactions with his daughter and the mother’s past misbehavior, to support the trial court’s decision to award joint physical custody to both parents, with the mother retaining primary physical custody. See OCGA § 19-9-3 (a) (3) (A), (M) (listing factors for consideration in a trial court’s determination of a child’s best interests, including "[t]he love, affection, bonding, and emotional ties existing between each parent and the child" and "[e]ach parent’s past performance and relative abilities for future performance of parenting responsibilities"); Rose v. Rose , 294 Ga. 719, 721 (1), 755 S.E.2d 737 (2014) (evidence supported trial court’s award of joint legal custody of a child to both parents, with primary physical custody to father).

2. The mother also argues that the trial court erred when it...