Calvert v. Calvert

• Docket Number: A24A0353
• Decision Date: 26 June 2024
• Citation: Calvert v. Calvert, 904 S.E.2d 1 (Ga. App. 2024)
• Parties: CALVERT v. CALVERT.
• Court: Georgia Court of Appeals

904 S.E.2d 1

CALVERT

v.CALVERT.

A24A0353

Court of Appeals of Georgia.

June 26, 2024

Onyema Anene Farrey, Atlanta, for Appellant.

Jerome L. Calvert, for Appellee.

Barnes, Presiding Judge.

Faith M. Calvert ("the mother") appeals from a trial court order modifying custody and child support for the three minor children she shares with her former husband, Jerome L. Calvert ("the father"). The mother contends that the trial court abused its discretion by awarding the father primary physical custody of the two youngest children, as he had not sought that relief in his petition. She further asserts that the trial court erred when, in calculating child support, it credited the father for the children’s health insurance premiums paid by his current wife, but failed to credit the mother for the health insurance premiums she paid to cover the children. Finally, the mother claims that the trial court erred in modifying the father’s payment schedule for the past due child support owed her. For reasons explained more fully below, we find no error and affirm the trial court’s order as to child custody, child support, and the proposed payment schedule.¹

[1–3] In deciding child custody, "a trial court has very broad discretion, looking always to the best interest of the child." (Citation and punctuation omitted.) Taylor v. Taylor, 293 Ga. 615, 616 (1), 748 S.E.2d 873 (2013). When we review a custody determination, we

view the evidence presented in the light most favorable to upholding the trial court's order[,] … mindful that the Solomonic task of assigning the custody of children 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. If the record contains any reasonable evidence to support the trial court's decision on a petition to modify custody, it will be affirmed on appeal.

(Citation and punctuation omitted.) Mitcham v. Spry, 300 Ga. App. 386, 386-387, 685 S.E.2d 374 (2009).

The record shows that the parties married in 2008 and were divorced pursuant to a final judgment and decree of divorce entered in December 2013. The divorce decree granted the mother primary physical custody of the couple’s only minor child, C. F. C. (born in 2008), and required the father to pay child support. Several months after the divorce, the parties reconciled and resumed living together as husband and wife, although they never remarried. During the time they lived together, the parties had two more children, C. L. C. (born in 2014), and C. J. C. (born in 2016). The mother and father separated a second time in January 2020, and all three children remained with the mother. One year later, the oldest child went to live with the father and in April 2021, the father filed a petition seeking legitimation of the two younger children; joint legal and physical custody of and visitation with the two younger children; primary physical custody of the oldest child; and modification of his child support obligation with respect to the oldest child. The mother counterclaimed for joint legal custody and primary physical custody of all three children. She also sought child support for all three children and an award of attorney fees under OCGA § 19-6-2.

Several months after the father filed his petition, the mother filed a motion for contempt based on the father’s failure to pay child support as ordered by the divorce decree. She also sought attorney fees for the cost of bringing the contempt motion. The father, in turn, moved for the appointment of a guardian ad litem "to render an opinion as to what is in the best interest of the children with respect to primary legal and physical custody." Following a hearing, the trial court entered an order on May 10, 2022 that, among other things, granted the motion for appointment of a guardian ad litem; found the father in contempt for failure to pay child support as required by the divorce decree; and awarded the mother $21,825 in past due child support and $4,315 in attorney fees. The order required the father to pay the attorney fees within 30 days and to pay the mother $500 per month in past due child support until the balance was paid.

In December 2022, the guardian ad litem sent a written report to the parties in which he recommended that the father be given primary physical custody of all three children. After detailing his concerns, the guardian ad litem concluded:

Based on all of the above concerns, as well as others that have come to [light] during this investigation, I believe that the environment that the children would be in at their father’s house would be more stable and beneficial to the young[er] girls …. This Guardian cannot help but be somewhat influenced by the fact that [the oldest child], on her own decision, has moved in with her father and is thriving more so than when she was living with her mother. The two younger girls, I believe, require structure, and them time needs to be better controlled, than what appears to be occurring at their mother’s home. I believe, therefore, that it is in the best interest of these girls for primary custody to be awarded to their father ….

Prior to the final hearing in June 2023, each parent filed a proposed parenting plan and a child support worksheet. The father’s parenting plan requested joint legal custody and primary physical custody of all three children. His child support worksheet showed a monthly expense of $300 for the children’s health insurance and he requested a credit for that amount in any child support calculation. The mother’s parenting plan requested joint legal custody of all three children and primary physical custody of the two younger children. Her child support worksheet showed a monthly expense of $419.84 for the children’s health insurance, and she sought a credit in that amount when calculating child support.

At the outset of the final hearing, the mother objected to the father arguing for physical custody of the two youngest children, noting that he had failed to request that relief in any pleading. The mother further asserted that the father’s first request for custody of the younger children was in the parenting plan filed two weeks earlier. The trial court overruled the objection and allowed the father to proceed with his request for primary physical custody of all three children. Additionally, the court allowed the father to move for reconsideration of the prior order finding him in contempt for failure to pay child support as required by the divorce decree and awarding the mother past due child support and attorney fees.

The evidence at the hearing showed that while living with their mother, the two younger children had a significant number of absences and tardies at school. During the 2021 school year, the middle child missed 48 days of school. And during the most recent school year (2022-2023), the middle child had 38 absences and 15 tardies while the younger child had 34 absences and 9 tardies. The mother attributed all of the children’s absences to illness, but during 2022-2023, each child had at least 10 absences that were unexcused.

As a result of learning difficulties, the middle child recently had undergone educational psychological testing. The mother, however, had failed to inform the psychologist about the child’s excessive absences from school and he therefore rendered a diagnosis without that information. And the guardian ad litem testified that the child’s educational file reflected her teachers’ opinions that her learning issues might be cured by better attendance.

The guardian ad litem also stated that he was appointed to render an opinion as to the primary physical custody of the two youngest children. And he reiterated his recommendation that the father receive primary physical custody of all three children, opining that the younger girls would benefit both from the more structured environment in the father’s home and from living with their older sister.

With respect to the children’s health insurance, the mother requested that she be the one to maintain that insurance, noting that she currently covered the children under a policy she purchased at a cost of $419.84 per month. The evidence further showed that the children’s stepmother also covered them through a plan provided by her employer, WellStar Hospital, at a cost of $300 per month.

Following the hearing, the trial court entered a final order granting the parents joint legal custody, granting the father primary physical custody of all three children, and requiring the father to maintain health insurance for the children. The order also required the mother to pay child support as calculated on the father’s child support worksheet, which gave the father a $300 monthly credit for the children’s health insurance. Additionally, the order denied the father’s motion for reconsideration of the prior order finding him in contempt and awarding the mother past due child support and attorney fees. And the order found that the father remained in contempt for failure to pay the attorney fee award in full and for failure to make any payments on the past due child support. The order therefore required the father to pay $400 a month to satisfy the $3,165 balance of attorney...