Kuehn v. Key

• Decision Date: 19 May 2014
• Docket Number: No. A13A0445.,A13A0445.
• Citation: 325 Ga.App. 512,754 S.E.2d 103
• Parties: KUEHN v. KEY.
• Court: Georgia Court of Appeals

325 Ga.App. 512

754 S.E.2d 103

KUEHN

v.KEY.

No. A13A0445.

Court of Appeals of Georgia.

Jan. 13, 2014.

Certiorari Denied May 19, 2014.

Horton, Ballard & Pemerton, William Horace Horton, for Appellant.

Robert L. Stultz, Fort Oglethorpe, for Appellee.

PHIPPS, Chief Judge.

In this appeal, we review a child custody ruling and an award of attorney fees. For reasons explained below, we affirm the judgment as it pertains to the child custody ruling, vacate the award of attorney fees, and remand the case for proceedings not inconsistent with this opinion.

When Carrie (Key) Kuehn (the mother) and Michael Key (the father) divorced in October 2007, the mother was awarded primary physical custody of their two young sons; the father was awarded visitation and ordered to pay child support. In November 2011, the father filed a “Petition for Modification”; the boys were then eight and nine years old. The father alleged in the petition that the mother's new husband (the stepfather) had repeatedly inflicted unnecessary and unreasonable physical and mental punishment upon the boys and that the mother had refused to intervene or to stop the stepfather's actions, which had seriously injured the children. The father requested that he be awarded primary physical custody, that the mother be granted visitation, and that she pay child support; the father also requested in his petition an award of attorney fees. After a hearing thereon, the trial court granted these requests.

1. The mother contends that the change in custody was not authorized, asserting that there was no evidence of a material change of condition affecting the welfare of the children.

“A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award.” ¹ “Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case.” ² “In determining whether or not a material change in circumstances substantially affecting the welfare of a child or children has taken place, the trial judge is vested with a discretion which will not be controlled by this court unless it is abused.” ³ Accordingly, “[t]his court will not interfere with the trial judge's finding when there is any evidence to support it.” ⁴

At the hearing, the father adduced evidence that on November 22, 2011, when the boys' paternal grandmother picked them up from school, they immediately told her that the older boy, then nine years old, had received a “terrible” whipping from their stepfather several days earlier. The older boy told his grandmother that the stepfather had hit him “so loud” that “it sounded like it hit a table”; the younger boy added, “yes, a metal table.” The grandmother testified that the boys were frightened and complained that their stepfather had been mean to them and that their mother had backed up their stepfather. The grandmother noticed that the older boy appeared to be in pain and was having trouble sitting down. She recounted that she thus checked her grandson's buttocks, discovering a bruise that “was huge. It almost covered his whole hip. Plus, below the hip, it was swollen. His hip was swollen down to part of his leg, and it was blue, purple, red, had streaks in it.”

The grandmother testified that the stepfather had been in the boys' lives for approximately five years and that his harsh treatment of the boys had been ongoing. For example, when the older boy had been in the first grade for about two weeks, he forgot and left his notebook at school. The grandmother testified about what she saw happen next: “[The stepfather] got in his face and started screaming at him, What do you mean, forgetting that. You know how important that is. Just yelling at him. [The first grader] just froze.” On another day, at soccer practice, when the older boy's attention drifted from the sporting activity to his younger brother, who was playing with another little boy, “[the stepfather] kicked the soccer ball as hard as he could—and I saw it—in his stomach. [The older boy] went to the ground in a fetal position. It knocked his breath out. And he couldn't move, and [the stepfather] said, ‘That's what happens when you don't pay attention.’ ” And on another occasion, when the stepfather was paddling the younger boy with a plastic cutting board, the board had broken. The grandmother testified that she had talked to the mother and stepfather about their discipline, but to no avail. As the grandmother saw it: “[The mother] stands with [the stepfather]. It doesn't matter how the children are treated. She does not standup for the children.”

The grandmother reported to the boys' father that the older boy had been whipped to the point of bruising. The father testified that the older boy told him that the stepfather had used a wooden paddle made out of a “one-by-four” that was approximately sixteen inches long. His stepfather had given him one lick, then his mother had given him two licks. The father took a photograph of the boy's buttocks, which photograph was admitted in evidence after the father authenticated it as accurately reflecting the boy's bruise.

The boys' father testified that he was concerned about the developing “pattern” of abuse toward his children, referring to the following. Since coming into his boys' lives shortly after the divorce, the stepfather had once made the younger boy hold a bar of soap in his mouth for about thirty minutes. Also, the stepfather had been paddling the boys with a plastic cutting board, until that paddle broke; after that, the stepfather had made the wooden paddle. The father described another occasion that had been reported to him—the stepfather had once refused to allow the older boy to come into the house. After playing outside, the boy wanted to come back inside; the stepfather admonished him that he had wanted to play outside, so “play outside.” According to the father, the stepfather's conduct toward his boys had made them fearful of him; the boys were “in great depression and oppression from the abuse that was taking place in [their] house and had lost a considerable amount of weight.” The father testified that he had never paddled either of his boys, that he believed that paddling children was inappropriate, and that he had tried repeatedly to talk to the boys' mother and stepfather about the stepfather's physical disciplining tactics, but to no avail.

At the time of the hearing, the father was living at his parents' residence. He testified that his boys were happy when with him. He testified that he had the means to provide for their support and maintenance. The grandmother testified about her participation in the care of the boys and said that “we all work together.”

The mother testified about the paddling incident in question. She recalled that the older boy had entered a neighbor's house when no one was home, took candy from the house, then lied to her when she questioned him about it. The mother testified that the stepfather used a paddle to give the boy one lick, then she struck her child two times with the paddle. She had not thought at the time that the three strikes they administered were excessive, nor had she thought so when she saw that bruising had appeared. Furthermore, she testified, the photograph of the boy's buttocks had “more color in it, more redness” than what she had seen on the boy after the punishment was administered. She added that the father, who was a photographer, often enhanced photographs. Regarding the stepfather's putting soap in the younger boy's mouth, the mother recalled that the boy was being punished for using profanity. The mother testified that she had known about the cutting board breaking on her older son, recalling that it had broken when the stepfather was administering “a lick or two” to that child.

The mother acknowledged that the father had expressed to her his disagreement with corporal punishment. But she continued to believe, as of the hearing, that striking her children with a paddle was a permissible form of discipline. And at any rate, neither she nor the stepfather had intended for the paddling in question to result in any bruising.

The boys' stepfather also testified. He acknowledged that the boys' father had told him and the mother that he did not want the boys disciplined by corporal punishment; the stepfather recounted that he had responded to the father that, at their own residence, he and his wife would administer whatever discipline they felt was appropriate. The stepfather was a school principal and had administered corporal punishment to middle school students by striking them one or two times with a wooden paddle. He had been reared in a culture of corporal punishment, had thereafter used it to discipline his own children, and had once left a bruise on one of them. The stepfather admitted that he had “paddled or spanked” his older stepson four or five times, and the younger one maybe twice. He admitting breaking the cutting board on one of the boys, but testified that the board was plastic and purchased at “the Dollar Store,” and that the boys immediately laughed about the board breaking. Regarding the “whipping” in question, he admitted striking the older boy “ firmly,” but was surprised that the single lick had caused a bruise. Further, he claimed that the bruise he had seen on the boy's buttocks was not of the same shape, color, or severity as that depicted by the photograph. The stepfather also admitted putting a bar of soap in the younger boy's mouth.

Nonetheless, the stepfather testified that corporal punishment would no longer be part of any discipline plan at their residence. He testified, “I love the boys. I try to show that with time spent and teaching them things and participating with them in things and hoping to raise them to be fine young men when they grow up.” To...