Cousin v. Tubbs

• Court: United States Court of Appeals (Georgia)
• Citation: 353 Ga.App. 873,840 S.E.2d 85
• Docket Number: A19A1805
• Parties: COUSIN v. TUBBS.
• Decision Date: 26 February 2020

353 Ga.App. 873
840 S.E.2d 85

COUSIN
v.
TUBBS.

A19A1805

Court of Appeals of Georgia.

February 26, 2020

840 S.E.2d 89

Tanya Mitchell Graham, Demetrius Jay Price, Atlanta, for Appellant.

Philip Albert Ladin, Kennesaw, for Appellee.

Dillard, Presiding Judge.

353 Ga.App. 873

In this domestic-relations proceeding, Herbert Cousin, Jr.—the father of minor child K. T.—appeals from an order in which the trial court, in relevant part, (1) denied his request to have K. T.’s mother, Adrian Tubbs, held in contempt of a prior custody order, (2) found him in contempt for failing to fully comply with his prior child-support obligations, and (3) granted Tubbs’s request for an upward modification of his child-support obligations. For the reasons that follow, we affirm in all respects except as to the trial court’s imposition of a high-income deviation from Cousin’s presumptive child-support obligation, which we vacate. Consequently, we remand this case for further proceedings consistent with this opinion.

Viewed in the light most favorable to the trial court’s rulings,¹ the record shows that K. T. was born in November 2011 and has lived with Tubbs his entire life; the parties never married. In 2012, Cousin was ordered to pay $217 per month in child support, provide health insurance for K. T., and pay a portion of K. T.’s unreimbursed medical

353 Ga.App. 874

expenses. In June 2013, the parties agreed to a "Parenting Plan" that was memorialized in a court order. Under the Parenting Plan, Tubbs retained legal and primary physical custody of K. T., and Cousin was entitled to visitation every other weekend, as well as additional times during holidays and vacations.

But over the next several years, Cousin exercised his visitation rights only 12 times out of 140 opportunities to do so, and he never exercised his rights to visits during vacations. And during the visits that did occur, K. T. at times returned to Tubbs hungry and with soiled diapers. Tubbs confronted Cousin about these deficiencies in September 2013 (when K. T. was 22 months old), after which she did not hear from Cousin until December 2015 (when K. T. was 4 years old). At that point, Tubbs and Cousin jointly agreed that—given the 27-month visitation hiatus—they would begin reestablishing Cousin’s relationship with K. T. by conducting visits supervised by Tubbs. Those visits began in January 2016 and occurred sporadically for several months. Beginning in June 2016, communication between the parties began to break down, with Cousin’s last visit with K. T. occurring on July 9, 2016. After the parties were unable to agree on a proposed visit in August 2016, it appears that Cousin did not seek visitation with K. T. again until he filed his answer and counterclaim in the current action in May 2017.

Tubbs initiated this action by filing a petition to modify child support in March 2017. Cousin raised several counterclaims, seeking, in relevant part, (1) to have Tubbs held in contempt of the visitation provisions in the June 2013 Parenting Plan; and (2) joint legal and physical custody of K. T. Tubbs later orally sought to have Cousin held in contempt for failing to pay child support and insurance premiums for K. T.

Following a hearing, the trial court issued a "Final Order" in July 2018, in which it (1) granted Cousin’s request to modify custody by awarding joint legal and physical custody to the parties, with primary physical custody to Tubbs; (2) denied Cousin’s motion for contempt; (3) granted Tubbs’s request to have Cousin held in contempt for failing to provide health insurance for K. T., but denied the request as it pertained to past-due child-support obligations, which Cousin had since satisfied; and (4) granted Tubbs’s request to modify child support by raising Cousin’s obligation to $11,439 monthly, based on a gross

840 S.E.2d 90

monthly income of over $60,000 (i.e. , total income of $762,602.13 in 2017). Cousin filed a motion for a new trial, which the trial court denied. This appeal follows.

On appellate review of a bench trial, we will not set aside the trial court’s factual findings unless they are clearly erroneous, and we properly give "due deference to the opportunity of the trial court

353 Ga.App. 875

to judge the credibility of the witnesses."² But the trial court’s application of the law to the facts is reviewed de novo .³ With these guiding principles in mind, we turn to Cousin’s specific claims of error.

1. Cousin argues that the trial court erred by declining to hold Tubbs in contempt after, he claims, she unilaterally imposed conditions on his visitation rights. We disagree.

To hold a party in contempt, a trial court must find that the party willfully disobeyed a court order.⁴ In ruling on a contempt motion, a trial court is vested with wide discretion in deciding both "whether [the court’s] orders have been violated and how such infringements should be treated," and we will not disturb the court’s determinations on these issues absent an abuse of that discretion.⁵ Indeed, given the wide latitude afforded to the trial court, we will affirm a contempt ruling "if there is any evidence in the record to support it."⁶ Suffice it to say, as the fact-finder, it is the trial court’s duty to "reconcile seemingly conflicting evidence and to weigh the credibility of witnesses."⁷

Here, construed in favor of the trial court’s ruling,⁸ the evidence shows that the parties mutually agreed to deviate from the Parenting Plan. In particular, the parties agreed that—given Cousin’s two-year absence from the child’s life—his initial visits with K. T. would be supervised, and once he established consistency with supervised

353 Ga.App. 876

visits, the parties would then transition to unsupervised visits. Although Tubbs testified that the determination as to consistency was hers to make (and that no overnight visits had yet occurred on that basis), she also noted that the parties jointly agreed to follow this course of action, rather than to follow the Parenting Plan. Importantly, Tubbs denied that she outright forbade all overnight visits. In that vein, the record indicates that Cousin’s work schedule prevented full weekend visits with K. T. for at least part of the relevant time frame. Moreover, Tubbs did not object to Cousin establishing a relationship with K. T. and agreed to abide by the Parenting Plan going forward.

The testimony above established that Tubbs did not outright prevent Cousin from visiting their child. Rather, viewed in favor of the trial court’s ruling, the evidence

840 S.E.2d 91

shows that the parties jointly agreed that—given Cousin’s 27-month absence from the child’s life—Tubbs would temporarily exercise some control over the visits. Under these circumstances, which included Cousin’s long absences, he has not met his burden of establishing that the trial court abused its broad discretion when it found that Tubbs had not interfered with his visitation rights to an extent that rose to the level of willful contempt of the Parenting Plan.⁹ We therefore affirm the trial court’s ruling in this regard.¹⁰

353 Ga.App. 877

2. Cousin contends that the trial court also erred by adjudicating Tubbs’s motion for contempt absent sufficient prior notice to him and by finding him in contempt for failing to provide insurance coverage for K. T. Once again, we disagree.

Under OCGA § 9-11-15 (b),¹¹

[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

This statute applies if the new issue was "actually litigated with the express or implied consent of both parties."¹² Thus, no matter how erroneous a ruling of a trial court might be, a litigant "cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further."¹³ A corollary to this rule is the proposition that "one cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing."¹⁴ Whether an issue has

840 S.E.2d 92

been tried with the parties’ implied consent, then, is a question of fact, and "a decision on this question is generally considered to be within the sound discretion of the trial court."¹⁵

During the hearing in this case, Tubbs orally asserted a claim for contempt against Cousin on grounds that, inter alia , he had stopped paying child support and insurance premiums. Specifically, Tubbs testified in May 2018 that (1) Cousin last...