Cockerham v. Cockerham

• Decision Date: 18 June 2021
• Docket Number: A21A0553
• Citation: 359 Ga.App. 891,860 S.E.2d 163
• Court: Georgia Court of Appeals
• Parties: COCKERHAM v. COCKERHAM.

359 Ga.App. 891

860 S.E.2d 163

COCKERHAM

v.COCKERHAM.

A21A0553

Court of Appeals of Georgia.

June 18, 2021

Kathy L. Portnoy, Atlanta, Garrett A. Nail, for Appellant.

Russell Donald King, Collin Day Hatcher, Marietta, for Appellee.

Barnes, Presiding Judge.

Scott Cockerham, the father of the minor child, C. C., filed a petition for modification of the parental time designated in his 2014 divorce from the mother, Barbara Cockerham. In his petition, the father requested that he be given equal parenting time with the mother. The divorce decree provided that the couple share joint custody of C. C., with the mother having primary physical custody. The decree also provided that the father's parenting time included overnight every Wednesday and every other weekend from Friday after school until Monday morning.

The mother answered and counterclaimed for an increase in child support. The mother also requested that the father be required to pay her attorney fees, that the guardian ad litem who was appointed for a former modification be appointed, and that the father pay the associated costs for the appointment. The mother filed a subsequent motion for the appointment of a guardian ad litem, and the father filed a response opposing the motion. According to the father, the appointment of a guardian ad litem is unnecessary in an action to modify parenting time as it would "unreasonably and inappropriately expand [the] litigation." Thereafter, by consent order, the parties agreed to the appointment of the guardian ad litem, with the father responsible for the retainer and invoices, and with the Court granted the "authority to re-apportion said fees and expenses between the parties as the Court deems just and proper at the conclusion of this case."

The parties also entered into a consent order for settlement of the mother's counterclaim to modify the child support. Per the consent order, the child support was increased to $3500 per month.

Following a hearing, the court entered a final order modifying the father's parenting time to extend his time with C. C. from Thursday after school until Monday morning, rather than the requested equal time. The trial court awarded the mother attorney fees of $5,706 as the prevailing party for her counterclaim for child support pursuant to OCGA § 19-6-15 (k), and attorney fees of $25,000 pursuant to OCGA § 19-9-3 (g) for her defense of the father's petition to modify parenting time. The trial court further directed that the father pay the $5,100 outstanding balance owed to the guardian ad litem.

The father now appeals from that order. He contends on appeal that the trial court erred by failing to make requested findings of facts and conclusions of law pursuant to OCGA §§ 9-11-52 and 19-9-3 (a) (8), and by denying his motions for a continuance and to remove the guardian ad litem. He further challenges the final order as violative of his constitutional rights to parent his child, and contends that the trial court permitted into evidence hearsay testimony over his objection.

For the reasons that follow, we vacate that portion of the trial court's final order modifying the parenting time, affirm the award of fees, and remand the case for further consideration consistent with this opinion.

In any case in which a judgment has been entered awarding the custody of a minor, on the motion of any party or on the motion of the court that portion of the judgment effecting visitation rights between the parties and their minor children may be subject to review and modification or alteration. The trial judge is fully authorized to modify visitation rights in a minor child without the necessity of any showing of a change in conditions. Modification of child visitation rights is a matter of discretion with the trial court and may be based upon the existing circumstances even if they have not changed since the prior award.

(Citations and punctuation omitted.) Tirado v. Shelnutt , 159 Ga. App. 624, 626 (2), 284 S.E.2d 641 (1981) ; Stanford v. Pogue , 340 Ga. App. 86, 796 S.E.2d 313 (2017) (finding that under OCGA § 19-9-3(b), a court may periodically review and modify the visitation portion of a custody judgment without a showing of a change in any material condition or circumstance). See also Gildar v. Gildar , 309 Ga. App. 730, 731-732, 710 S.E.2d 913 (2011) ("[M]odification of child visitation rights is a matter of discretion with the trial court. If reasonable evidence exists in the record to support the trial court's decision to change visitation rights, then the decision of that court will stand. The trial court's decision will not be overturned absent abuse of discretion.") (punctuation and footnotes omitted).

1. We first note that per this Court's rules, the appellant's brief is required to contain "a statement of the method by which each enumeration of error was preserved for consideration." (Emphasis supplied.) Court of Appeals Rule 25 (a) (1). Here, the father merely states that, "[a]ll of the issues raised in Father's Enumeration of Errors are preserved on the record, specifically but not exclusively in the Transcript of the final trial on August 20, 26, and 27, 2020, the Transcript of the hearing on October 7, 2019, and in Father's Petition."

This Court will not cull through the appellant's entire record to ensure that each enumeration was preserved for review. Drew v. Istar Financial , 291 Ga. App. 323, 661 S.E.2d 686 (2008). "Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel" for the father. (Citation and punctuation omitted.) Pruitt v. State , 323 Ga. App. 689, 690 (1), 747 S.E.2d 694 (2013). Moreover, if the error was not specifically preserved for review, this "[C]ourt will not consider an issue raised for the first time on appeal, because the trial court has not had the opportunity to consider it." (Punctuation and footnote omitted.) Sitton v. Print Direction, Inc. , 312 Ga. App. 365, 370 (3), 718 S.E.2d 532 (2011).

2. The father first contends that the trial court erred by failing to make requested findings of facts pursuant to OCGA § 9-11-52 and OCGA § 19-9-3 (a) (8). The father notes that he requested such findings and conclusions during the hearing, and that the trial court affirmed that it would "make findings of fact." Instead, according to the father, the final order did not include any findings with regard to the best interests of C. C., or factual basis for the award of the attorney fees or the trial court's edict that he pay the remaining guardian ad litem fees.

The trial court's two-page order contained seven paragraphs. The first paragraph stated that "[t]his case concerns the Parties’ minor child [C. C.], a thirteen-year-old boy born in 2007." Paragraph two provided that:

This Court finds that it is in [C. C.’]s best interests for this Court to slightly modify Father's parenting time with [C. C.] as follows: Father shall have the right to visit with [C. C.] on every other weekend from Thursday at 3pm (or release from school) until the following Monday morning at 9am (or return to school). During Father's weekend visits, [C. C.] shall be with Father all day on Friday.

Paragraphs three through five directed that the father pay attorney fees related to the mother prevailing in her counterclaim for increased child support and the defense of his petition to modify the parenting time, and further directed that he pay a remaining balance owed to the guardian ad litem of approximately $5,100. In paragraph six, the trial court observed:

This Court finds it very disturbing that Father would use profanity in email and could not restrain himself from doing so knowing full well it would be introduced into evidence at the upcoming trial. The Court draws an adverse inference against Father: if Father will say something profane in writing in the Court's view, then Father likely communicates even worse things orally, when there is no written record.¹

The order concluded with paragraph seven, in which the trial court, in essence, directed the couple to treat each other civilly around C. C.

The father contends that "arguably" the only factual finding in the order is the trial court's observation about his use of an expletive in an email but there was no further explanation as to its relevance on the best interest of C. C., or the factors in OCGA § 19-9-3 (a) (3). Likewise, he argues, the trial court's directives regarding the attorney fees awards and guardian ad litem fees are similarly lacking in factual findings.

OCGA § 9-11-52 (a) provides:

In ruling on interlocutory injunctions and in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law. If an opinion or memorandum of decision is filed, it will be sufficient if the findings and conclusions appear therein. Findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

OCGA § 19-9-3 (a) (8) also provides for factual findings, "[i]f requested by any party on or before the close of evidence in a contested hearing." The statute directs that, if so requested, "the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge's decision in making an award of custody including any relevant factor relied upon by the judge as set forth in paragraph (3) of this subsection."²

According to the mother, the trial court's substantive finding as to the father's use of expletives was sufficient. In support of her contention, she points to the evidence at trial, including the written communications containing expletives, which, the mother asserts, reflected the father's lack of self control and use of profanity in C. C.’s presence and was a relevant factor the trial court could consider in modifying parenting time.³ The...