Hooper v. Townsend, A21A1293

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMercier, Judge.
Citation362 Ga.App. 532,868 S.E.2d 286
Parties HOOPER v. TOWNSEND.
Decision Date19 January 2022
Docket NumberA21A1293

362 Ga.App. 532
868 S.E.2d 286

HOOPER
v.
TOWNSEND.

A21A1293

Court of Appeals of Georgia.

January 19, 2022
Review Denied February 9, 2022


868 S.E.2d 289

Kristin Jocelyn Hooper, for Appellant.

Steven Jameel Pritchett, Demetrius Tennell Lockett, E. Noreen Banks-Ware, Lithonia, for Appellee.

Mercier, Judge.

362 Ga.App. 532

In this child custody action, Kristin Jocelyn Hooper ("the mother") appeals pro se from the trial court's modification of custody and child support, and its award of attorney fees to Travis Townsend, Jr. ("the father"). For the following reasons, we affirm.1

The evidence shows that the parties, who were never married, share a son who was born in Georgia in November 2013. In 2014, the mother moved to Virginia with the child. The father subsequently filed a petition to legitimate the child, and on September 10, 2015, the trial court entered a final order on legitimation, custody, and child support. The child was declared the legitimate son of the father, and the court ordered that the parties share joint legal custody of the child, with the mother having primary physical custody. The court incorporated a parenting plan that provided the father has the right to communicate with the child by telephone or Skype between 6:00 p.m. and 7:00 p.m. each weekday and between 7:00 p.m. and 8:30 p.m. on weekends, and that on weekdays the call shall be no longer than 15 minutes; the father has the right to visitation with

362 Ga.App. 533

the child on the second and fourth weekends of every month; the parties shall discuss jointly all major and material matters affecting the child's welfare and development, including medical, educational, extracurricular, and religious decisions; and a party changing his or her residence shall notify the other party in writing at least 30 days in advance and shall furnish his or her new address.

On February 12, 2018, the father filed a "Petition for Modification of Custody and Expedited Motion for Contempt" alleging, among other things, that the mother had obtained an ex parte protective order in Virginia to prohibit him from communicating with the child, failed to have the child available

868 S.E.2d 290

for daily video call visits, did not provide him with 30-day notice of her intent to move to New Jersey, and on several occasions falsely asserted that the child was ill and could not travel for visitation with the father. The father requested that he be awarded primary physical custody of the child and that the court appoint a guardian ad litem.

In March 2018, the mother and the child moved from Virginia to New Jersey. In the same month, the father filed an emergency motion for contempt alleging that the mother had not responded to his attempts to contact the child, that he had not been permitted to speak to the child since January 20, 2018, and that the mother failed to bring the child for his parenting time on the weekend of March 9. The trial court entered a consent order on the father's emergency motion that required the mother to bring to the child to Georgia on April 4, 2018, for visitation with the father and to "immediately resume" the father's telephone visits with the child as provided in the parenting plan in the September 2015 order.

Shortly thereafter, the mother filed in Virginia an emergency petition to modify custody, alleging that because she and the minor child moved from Virginia to New Jersey, the original custodial arrangement was no longer in the child's best interests. She asserted that the frequent air travel was irritating to the child's ears and disruptive to his health and well-being. The mother asked the Virginia court to assume jurisdiction of the custody matter and to modify the custody schedule ordered by the Georgia court in September 2015. She also filed a motion in Georgia seeking to transfer jurisdiction of the action to Virginia pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See OCGA § 19-9-40 et seq. But after a telephone call with the Virginia court, see OCGA § 19-9-49, the trial court entered an order concluding that because Georgia had exclusive and continuing jurisdiction over the matter, it would retain the custody action. The Virginia court agreed that Georgia "continues to have exclusive continuing jurisdiction" of the custody

362 Ga.App. 534

matter and dismissed the mother's motion to modify custody filed there.

On September 13, 2018, the trial court appointed a guardian ad litem to represent the child's interests. The court also ordered a "Late Case Evaluation" in order for the parties to resolve or narrow their issues prior to trial. However because the parties asserted that the evaluator had a conflict of interest, the evaluation was canceled and not rescheduled.

In January 2020, the trial court held a three-day bench trial on the father's motion to modify custody, and on February 27, 2020, the court issued a final order on the motion. The court found that although both parents were bonded with the child and capable of providing for his needs and care, the mother "engaged in intentional, comprehensive and persistent alienation of the minor child" from the father. The court cited several examples: the mother obtained an ex parte temporary protective order to circumvent the father's parenting time, consistently failed to make the child available to the father by phone or video call, falsely represented that the child had a medical condition or travel/activity restriction to circumvent parenting time by the father, and coached the child to "reframe his interpretation of life events and experiences to reflect negatively upon [the father] and [the father's] family." The court also found that the mother "demonstrated a clear unwillingness to co-parent" with the father, noting that in violation of the September 2015 order, she failed to provide the father with written notice of her move from Virginia to New Jersey, and she enrolled the child in a new school and psychotherapy without consulting the father. The court found further that the father was compliant with prior court orders and demonstrated a willingness to co-parent with the mother "despite barriers and challenges presented by [the mother]," and that the guardian ad litem's analysis and recommendation to give the father primary physical custody were "founded and appropriate." The court granted the father's request for primary physical custody of the child concluding that the evidence showed a "material change of conditions and circumstances." However, the court reserved ruling on the father's request for attorney fees.

868 S.E.2d 291

Following a hearing, on October 27, 2020, the trial court entered an order granting the father's motion for attorney fees under OCGA § 19-9-3 and awarding him $30,108 to be paid in installments.2 This appeal followed.

362 Ga.App. 535

1. The mother asserts that the trial judge erred in declining to recuse herself from the case. However, the mother did not move to recuse the judge, and she appears to argue that the judge should have sua sponte recused for "violat[ing] the three degrees of separation requirement" of the Georgia Code of Judicial Conduct Rule 2.11 (A). Specifically, the mother argues that the father's brother was a staff attorney for another judge on the court; the father (who is an attorney), his wife, and the trial judge were all in "Outstanding Atlanta;" and the father's wife and the trial judge were "both in Junior League."

"A trial judge has no duty to sua sponte recuse himself or herself in the absence of a violation of OCGA § 15-1-8 or Canon 2, Rule 2.11 (A)." Shelton v. State , 350 Ga. App. 774, 782 (3), 830 S.E.2d 335 (2019). OCGA § 15-1-8 (a) (1) and (2) provide that a judge shall not preside over any matter in which he or she is pecuniarily interested nor any matter "when such judge is related by consanguinity or affinity within the third degree as computed according to the civil law to any party interested in the result of the case or matter." Georgia Code of Judicial Conduct Rule 2.11 (A) (a) and (c) provide in relevant part that

[j]udges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, or in which ... [t]he judge is within the third degree of relationship to ... a party to the proceeding, ... [or] ... a person known by the judge to have a more than de minimis interest that could be substantially affected by the outcome of the proceeding[.]

(Emphasis omitted.)

The mother points to no evidence that the trial judge was within the third degree of relationship to any party in this case or that the judge had more than a de minimis interest in the case. And to the extent the mother argues that the judge's impartiality might reasonably be questioned because of her alleged membership in the same organizations as the father and his wife (or because the father's brother was a staff attorney for another judge), the mother has not pointed to evidence of significant contact or improper communications between the judge...

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1 practice notes
  • Stanley v. Edwards, A21A1500
    • United States
    • United States Court of Appeals (Georgia)
    • 15 Marzo 2022
    ...(1), 859 S.E.2d 490, quoting Odum v. Russell , 342 Ga. App. 390, 392 (1), 802 S.E.2d 829 (2017).9 Compare with Hooper v. Townsend , 362 Ga.App. 532, 868 S.E.2d 286 (2022) (affirming modification of custody based in part on mother's alienation of the child from the father, stating that "the ......
1 cases
  • Stanley v. Edwards, A21A1500
    • United States
    • United States Court of Appeals (Georgia)
    • 15 Marzo 2022
    ...(1), 859 S.E.2d 490, quoting Odum v. Russell , 342 Ga. App. 390, 392 (1), 802 S.E.2d 829 (2017).9 Compare with Hooper v. Townsend , 362 Ga.App. 532, 868 S.E.2d 286 (2022) (affirming modification of custody based in part on mother's alienation of the child from the father, stating that "the ......

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