Gildar v. Gildar.
| Decision Date | 01 June 2011 |
| Docket Number | No. A11A0759.,A11A0759. |
| Citation | 309 Ga.App. 730,710 S.E.2d 913 |
| Parties | GILDARv.GILDAR. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
McGinnis & Chambers, Eugene P. Chambers III, for appellant.Weinstock & Scavo, Lindsay B. Dodson, Atlanta, for appellee.PHIPPS, Presiding Judge.
David Gildar (the father) appeals from an order that, inter alia, lifted certain restrictions on the visitation rights of his former wife, Catherine Gildar (the mother), with their children.1 Finding no error, we affirm.
The record shows that on June 8, 2005, pursuant to a consent agreement between the parents, the trial court entered a Final Judgment on Child Custody (the Final Judgment), awarding the father sole legal and physical custody of the children and awarding the mother visitation rights. Pertinently, the Final Judgment provided that, for a period of one year, the mother's visitation rights would be conditioned upon her satisfaction of certain enumerated “safeguards” due to her past drug and alcohol use. The Final Judgment provided that, “once the [s]afeguards described herein are no longer required,” the father could require the mother to take drug and alcohol tests in a manner specified by the Final Judgment, and that “[i]n the event that the Mother fails to take such test or fails such test, then the [s]afeguards outlined herein shall be reinstated.” And the Final Judgment provided:
In the event the Mother fails either of the above safeguards to ensure that she is not consuming alcohol or abusing prescription drugs while caring for her children, all her time with the children shall be supervised at her expense. Such supervision shall continue until the Mother obtains a clearance from Dr. Michael Fishman, the Court appointed addictionologist, or from another medically licensed physician specializing in addiction medicine who has either been recommended by Dr. Fishman or who has been approved by the Father.
On May 26, 2010, in response to an emergency petition for contempt, the trial court found that the mother had failed to comply with the terms of the Final Judgment because she had not demonstrated that she had taken a March 2010 test in the specified manner. Consequently, the court held that the safeguards outlined in the Final Judgment were reinstated, thereby restricting the mother's unsupervised visitation rights, and that, pursuant to the Final Judgment, “[t]he [mother] must now take the necessary action to lift the [s]afeguard provisions.”
On June 3, 2010, the mother filed an emergency petition for citation for contempt against the father for interfering with her visitation rights. Therein, she argued that she had met the Final Judgment's requirements for lifting the restrictions on her visitation rights and had received the necessary “clearance” from a doctor approved by Dr. Fishman (Dr. Gordon) to fulfill the responsibilities set forth in the Final Judgment. The trial court denied the mother's petition, declining to find the father in contempt, but also held that the safeguard provisions triggered by the March 2010 test “have run their course, the purpose of same has been met and [the mother's] supervised visitation requirement is hereby suspended, effective immediately.”
The father contends that the court erred in suspending the restrictions on the mother's visitation rights, because that change contravened the plain and unambiguous terms of the Final Judgment. But [a]lthough it has long been the rule in this state that a trial court cannot modify the terms of a divorce decree in a contempt proceeding, an exception is made with regard to visitation rights. Under ... OCGA § 19–9–3(b), the trial court is expressly authorized to modify visitation rights, even on its own motion, during a contempt proceeding.2
Thus, even assuming arguendo that the mother did not meet the Final Judgment's requirements for unsupervised visitation, the court nevertheless had the authority to modify the terms of visitation to allow the mother to resume unsupervised visitation.3
Moreover, “[m]odification of child visitation rights is a matter of discretion with the trial court.” 4 ...
To continue reading
Request your trial
-
Cockerham v. Cockerham
...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 exi......
-
Ansell v. Ansell, A14A0308
...shall not be had more often than once in each two-year period following the date of entry of the judgment.”); Gildar v. Gildar, 309 Ga.App. 730, 731–732, 710 S.E.2d 913 (2011) (applying abuse of discretion standard to trial court's decision made pursuant to OCGA § 19–9–3(b)). 5. See 22 CFR ......
-
Ansell v. Ansell, A14A0308
...shall not be had more often than once in each two-year period following the date of entry of the judgment."); Gildar v. Gildar, 309 Ga. App. 730, 731-732 (710 SE2d 913) (2011) (applying abuse of discretion standard to trial court's decision made pursuant to OCGA § 19-9-3 (b)). 5. See 22 CFR......
-
Cooper v. Coulter, A15A1907.
...754 S.E.2d 385 (2014) (standard applied in deciding visitation rights is best interests of the child). See also Gildar v. Gildar, 309 Ga.App. 730, 731, 710 S.E.2d 913 (2011) ("If reasonable evidence exists in the record to support the trial court's decision to change visitation rights, then......