Dellinger v. Dellinger, S04F1376.

• Decision Date: 23 November 2004
• Docket Number: No. S04F1376.,S04F1376.
• Citation: 278 Ga. 732,609 S.E.2d 331
• Parties: DELLINGER v. DELLINGER.
• Court: Georgia Supreme Court

609 S.E.2d 331

278 Ga. 732

DELLINGER v. DELLINGER.

No. S04F1376.

Supreme Court of Georgia.

November 23, 2004.

Harmon, Smith, Bridges & Wilbanks, Archer D. Smith III, Fred P. Anthony, Jr., Atlanta, for appellant.

Alembik, Fine & Callner, Joseph M. Winter, Atlanta, Michelle G. Harrison, Kenneth W. Krontz, Douglasville, for appellee.

HUNSTEIN, Justice.

This appeal challenges the validity of a self-executing change of visitation provision in a divorce decree. Appellant Sonja Dellinger, a life-long resident of Alabama, filed a divorce petition to end her nine-year marriage to appellee Terry Dellinger in February 2003, six months after the parties moved to Georgia. Appellant sought primary physical custody with joint legal custody of the parties' two children. At the time of the August 2003 hearing on the divorce petition, the older child was six years old and had just entered first grade while the younger child was three years old and in day care. Both parties worked in downtown Atlanta¹ while appellee lived in the marital residence in Douglas County and appellant lived in an apartment with the children. However, appellant testified that if she received custody of the children, she intended to return home to Alabama with them.

Under the terms announced orally by the judge and later incorporated into the final divorce decree, the trial court awarded the parties joint legal custody but gave primary physical custody of the children to appellee. The trial court then formulated two visitation plans. Under "Plan A," appellant had the children for basically half of the time and her child support obligation was set at ten percent of her gross income. The departure from the guidelines was based on "the extended visitation." Also under Plan A the parties would alternate holiday visitation; appellant would have the children for four weeks in the summer; and the parties would share equally in the delivery and return of the children. "Plan B" went automatically into effect if appellant chose to reside "more than thirty-five miles from Douglas County." Under Plan B appellant could visit with her children only on the first, third and fifth weekend of each month and four weeks of summer vacation; she was required to both collect and return the children; and her child support obligation increased to 23 percent.²

Appellant thereafter filed an application to appeal from the final divorce decree, which we granted pursuant to this Court's pilot project. See Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003).

1. Appellant contends the trial court erred by providing for a self-executing change of visitation should she move more than 35 miles outside of Douglas County without considering the best interests of the children at the time of any such move. We agree and reverse.

In Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003), this Court held that any self-executing change of custody provision that fails to give paramount import to the child's best interests in a change of custody as between parents must be stricken as violative of Georgia public policy. Id. at 375, 578 S.E.2d 876. This ruling was premised on the idea that the law "recognizes that because children are not immutable objects but living beings who mature and develop in unforeseeable directions, the initial award of custody may not always remain the selection that promotes the best interests of the child." Id. at 373, 578 S.E.2d 876. While we recognize that "[v]isitation rights (even extensive visitation rights) do not constitute custody," Atkins v. Zachary, 243 Ga. 453, 254 S.E.2d 837 (1979), visitation rights are a part of custody and changes in one parent's visitation rights necessarily affect the custodial rights of the other parent. Id.; see also Nodvin v. Nodvin, 235 Ga. 708, 221 S.E.2d 404 (1975). Material changes in one parent's visitation rights also necessarily implicate the best interests of the child because visitation controls the child's contact with the non-custodial parent. Children do not understand or care about the legal niceties the courts draw between visitation and custody: it is the child's contact with the parent that impacts the child's best interests, not whether that contact occurs under the label of visitation or custody. Material changes in the amount of contact with a parent affects a child's best interests regardless whether that parent is the custodial or non-custodial parent. Therefore, we decline to draw a distinction between custody and visitation when a material change in visitation is at issue.

In accordance with Scott, supra, we hold that self-executing material changes in visitation violate this State's public policy founded on the best interests of a child unless there is evidence before the court that one or both parties have committed to a given course of action that will be implemented at a given time; the court has heard evidence how that course of action will impact upon the best interests of the child or children involved; and the provision is carefully crafted to address the effects on the offspring of that given course of action. Such provisions should be the exception, not the rule, and should be narrowly drafted to ensure that they will not impact adversely upon any child's best interests.

Applying our holding to the self-executing change of visitation provision in this case, we first address whether a material change in visitation is involved in this case. Under the terms of the challenged provision, should appellant move to a residence situated more than 35 miles from Douglas County, the children's contact with her will be automatically decreased from Sunday through Wednesday every single week to two days every other weekend. The triggering event thus means that instead of spending half of their lives with appellant, the children will see her at best six days a month during most of the year.³ We hold that a change of this magnitude constitutes a material change of visitation that is allowable only upon a determination that it is in the best interests of the children at the time of the change. Scott, supra.

The dissent posits that the automatic change provision was based on evidence before the trial court at the time of the divorce that appellant intended to return to Alabama after the divorce was finalized and thus the trial court was able to "accurately predict" the impact of appellant's move on the best interests of the children. The trial transcript, however, does not support this argument in that appellant's testimony regarding her intention to return to Alabama was premised upon her receipt of primary physical custody of the children. When asked what she would do if appellee received primary physical custody, the only evidence before the trial court regarding her intentions was that she would do "what is necessary" to provide her children with her presence and time.⁴ Given the trial court's custody ruling in favor of appellee, there was no evidence before the trial court upon which it could have "predicted" whether appellant will choose to return to Alabama at any point in the future or instead choose to remain in the Atlanta area near her children.⁵ Thus, the trial court could not have concluded that appellant had committed to a given course of action, i.e., returning to Alabama, or that she would implement that course of action at any given time.

It is the factual situation existing at the time of the material change in visitation that determines whether a change is warranted, not the factual situation at the time of the divorce decree. See Scott, supra at 376, 578 S.E.2d 876. However, the automatic change in visitation provision in this case contains no language limiting its application at or near the time of the divorce. In fact, the challenged provision lacks any expiration date at all. As drafted the provision would authorize implementation of the self-executing change of visitation at any time, even though the change could be triggered months or even years in the future. This material change in the children's visitation would be accomplished automatically and "without any regard to the circumstances existing" in the children's lives at the time of the change. Scott, supra at 375, 578 S.E.2d 876. As such, this provision is "utterly devoid of the flexibility necessary to adapt to the unique variables that arise in every case, variables that must be assessed in order to determine what serves the best interests and welfare of a child." Id.

Further undermining the validity of the challenged provision is the arbitrary triggering event chosen by the trial court. Self-executing material changes in visitation must be carefully crafted to connect the occurrence of the triggering event to the best interests of the child or children so as to warrant a material change in visitation. Here, the triggering event — appellant's move to a residence 35 miles from Douglas County — has only a tangential connection with the children's best interests. If the children's commute time was a concern, the provision's arbitrary 35-mile limit has no relationship to traffic patterns and congestion in the metro Atlanta area. Indeed, appellant may very well be able to collect and return her children faster to their Douglas County home driving from a residence in Alabama, outside the 35-mile zone, than she could from a location inside the zone in downtown Atlanta. As drafted, the challenged provision fails to reflect an individualized consideration of the children's best interests in this case and neither recognizes nor promotes those best interests as they may be affected by the triggering event.

In applying Scott here, we reiterate its holding that "[n]either the convenience of the parents nor the clogged calendars of the courts can justify automatically [requiring a material change in visitation] absent evidence that the change is in the child's best interests. The paramount concern in any ...