Lowry v. Winenger

• Decision Date: 23 February 2017
• Docket Number: A16A2133
• Citation: 797 S.E.2d 230,340 Ga.App. 382
• Parties: LOWRY v. WINENGER.
• Court: Georgia Court of Appeals

340 Ga.App. 382

797 S.E.2d 230

LOWRY

v.WINENGER.

A16A2133

Court of Appeals of Georgia.

February 23, 2017

Jennifer D. Patterson, for Appellant.

Andrea M. Johnson, Atlanta, Frances Marian Weeks, for Appellee.

Bethel, Judge.

April Lowry (the "mother") appeals from a final order modifying custody, visitation, and child support with regard to her seven year-old child (the "child").¹ The mother contends that the trial court erred in awarding modification because there was not sufficient evidence presented by her former husband, Robert Winenger (the "father"), to demonstrate that a material change in circumstances adversely affecting the child had occurred. She also contends that the trial court should not have considered potential future negative impacts to the child in determining that a material change in circumstances had occurred. For the reasons stated below, we affirm.

When considering a ruling on a material change in circumstances, this Court views the evidence in the record in the light most favorable to the trial court's order and will affirm the trial court's decision "if there is any evidence to support it." Horn v. Shepherd , 292 Ga. 14, 18, 732 S.E.2d 427 (2012) (citation omitted). So viewed, the mother and the father were divorced in 2013. Since that time, pursuant to their divorce decree, they have shared custody of the child with parenting time divided roughly equally between them. The mother has been the child's primary physical custodian, and neither parent was ordered to pay child support. The divorce decree also provided, inter alia, that the father retained final decision-making authority with regard to the child's religious upbringing and instruction.

In the proceedings below, the father petitioned the court for a modification of the decree, seeking joint legal and primary physical custody of the child. A guardian ad litem (the "guardian") was appointed.

The evidence showed that several changes had taken place in the child's living and social arrangements in the time following the divorce. The mother was remarried two months after her divorce from the father was finalized. Soon after her remarriage, the mother converted to the Mormon faith, and at times when the child was with her, the mother took the child to a Mormon church and encouraged the child to participate in other activities associated with the Mormon church. The father did not consent to the child's attendance at the mother's new church, and the father stated that the child's attendance at the church had confused the child and interfered with the father's authority over the child's religious upbringing and the father's decision to raise the child in a non-denominational Christian church.

The mother also moved from the former marital residence in Forsyth County that she lived in with the child following the divorce to a number of other residences before settling in their current home in Hall County. Both the father and the guardian testified that the mother mislead them as to where the child would be living during this period of transition.

The father and the guardian also testified that the move extended the father's drive to the mother's residence by approximately 50 minutes. The father's testimony and that of the guardian indicated that this move had made the agreed parenting plan more challenging and also made it more difficult for the child to be involved in religious, extracurricular, and educational activities in Forsyth County that the father had selected for him.² The father's testimony indicated that the move to Hall County had facilitated the mother's interference with that authority and that, since moving, the mother had signed the child up for activities that conflicted with those chosen by the father and failed to take the child to activities that the father had scheduled for the child.

The father also presented evidence that the school the child attended in Hall County was not as highly rated as the schools he could attend in Forsyth County and that his interests would be better served by attending school in Forsyth County. The father testified that the child began to exhibit apathy toward his new school in Hall County, which he had not shown with regard to his school in Forsyth County.

In her report, the guardian suggested that a modification to the custody order should be made. She indicated that because of her understanding of the differences between the mother's church and the father's church, it was important that one parent be in charge of religious upbringing and that the other parent respect that choice. The guardian suggested that awarding primary custody to the father would best serve the child's interests.

In its ruling, the trial court found that the child had suffered a number of negative impacts from these changes. First, the trial court found that the mother's actions to conceal the location of her residence from the father violated the divorce decree, showed poor judgment on her part, and negatively impacted the safety and welfare of the child. Second, the trial court found that the mother's decision to move to Hall County added to the child's commute time and demonstrated an intention to interfere with the father's relationship with the child, which negatively impacted the child. Third, the trial court found that the child began to exhibit apathy for school after his move to Hall County. The trial court found that, although the child continued to receive good grades and had demonstrated other signs of academic progress at his school in Hall County, his apathy regarding school was a negative impact resulting from the changes. Finally, the trial court found that, by taking the child to activities at her church, the mother had not respected the father's final decision-making authority with regard to the child's religious upbringing, in contravention of the divorce decree, and that this decision created confusion for the child.

Finding that a material change in circumstances adversely affecting the child had occurred and that the change in custody sought by the father was in the child's best interests, based on the totality of the child's changed circumstances and the resulting harms noted above, the trial court granted the father's petition, awarding him primary physical custody of the child. The trial court granted visitation rights to the mother and ordered her to pay monthly child support. The trial court also held the mother in contempt for violations of the divorce decree relating to the father's authority over the child's extracurricular activities and religious upbringing. This appeal followed.

1. The mother first contends that the evidence presented to the trial court was not sufficient to demonstrate a material change in circumstance that negatively impacted the child. Once an award of child custody has been made, when the non-custodial parent seeks to change that arrangement, the trial court must determine whether there has been a material change in circumstances affecting the welfare of the child. Viskup v. Viskup , 291 Ga. 103, 105 (2), 727 S.E.2d 97 (2012). The trial court can then determine whether the child's best interests will be served by a change in custody. Todd v. Casciano , 256 Ga.App. 631, 632 (1), 569 S.E.2d 566 (2002).³

"Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case." Scott v. Scott , 276 Ga. 372, 373, 578 S.E.2d 876 (2003). This Court will not interfere with a trial court's decision "unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court's finding, we will not find there was an abuse of discretion." Autrey v. Autrey , 288 Ga. 283, 285 (4), 702 S.E.2d 878 (2010).

In this case, the trial court considered the totality of the circumstances in determining whether a material change in circumstances had occurred warranting a change in the parties' custody arrangement. Noting that no single factor was sufficient to warrant the change sought by the father, the trial court determined that, in light of all of the evidence of changes in the child's circumstances and the evidence showing their negative impact on the child, "together they constitute the required change in condition."⁴

Based on the trial court's examination of the testimony presented, we find that the record reflects sufficient evidence of both material changes in the child's circumstances and adverse affects due to such changes. The record reflects numerous changes in the child's living, extracurricular, and school arrangements since the parties' divorce. As to the impact of those changes on the child, the father's statements regarding the child's apathy toward schoolwork are evidence of an adverse affect on the child. See Fox v. Korucu , 315 Ga.App. 851, 855, 729 S.E.2d 16 (2012) (holding that an affidavit submitted by a parent stating that the child was unhappy and stressed about attending her current school was evidence of an adverse change materially affecting the child sufficient to create a material question of fact). Likewise, the father presented evidence as to differences between the father's church and the Mormon church attended by the mother and the confusion that the child suffered as a result of his exposure to both systems of belief.⁵

The role of the...