Mashburn v. Mashburn
| Decision Date | 31 October 2019 |
| Docket Number | A19A1617,A19A1616 |
| Citation | 836 S.E.2d 131,353 Ga.App. 31 |
| Parties | MASHBURN v. MASHBURN. et al Mashburn v. Wiggins. |
| Court | Georgia Court of Appeals |
Wolford & Robinson, Samuel F. Robinson III for appellant. Brown & Hill Attorneys, Rickie L. Brown, J. Brooke Hill, for appellees (case no A19A1616). McDonald Thames & Ray, Joel P. Thames, for appellee (case no. A19A1617).
These related appeals arise out of two separate orders of the Whitfield County Superior Court concerning the custody of the mother's minor children, L. G. M. and F. W. In Case No. A19A1616, the mother appeals from an order granting her parents ("the grandparents") sole legal and physical custody of L. G. M. and providing the mother with four hours of supervised visitation per month. The mother asserts that the trial court erred in granting the grandparents' petition because the grandparents failed to prove by clear and convincing evidence that maternal custody of L. G. M. would cause the child physical or long-term emotional harm. She further contends that the grandparents failed to meet their burden of proof as a matter of law, because they offered no expert testimony as to the emotional effect of maternal custody on L. G. M. Finally, the mother asserts that the trial court erred in admitting into evidence nude photographs of the mother.
In Case No. A19A1617, the mother appeals from an order granting sole legal and physical custody of F. W. to the child's father ("the father") and providing the mother with four hours of supervised visitation per month. The mother contends that the evidence failed to support the trial court's finding that a change in material conditions or circumstances affecting the welfare of F. W. had occurred. And the mother again asserts that the trial court erred in admitting into evidence nude photographs of her.
For reasons explained more fully below, we find that sufficient evidence supported the trial court's award of custody of L. G. M. to the grandparents and the award of primary physical custody of F. W. to her father. We further find, however, that the trial court's orders do not show that the court analyzed the children's best interests in awarding the mother only supervised visitation. Furthermore, the trial court's orders contained an impermissible self-executing visitation provision and failed to set forth or otherwise incorporate the parenting plan required by OCGA § 19-9-1. Accordingly, we vacate the trial court's orders and remand both cases for further proceedings consistent with this opinion.
When reviewing an order in a child custody case, we view the evidence in the light most favorable to the trial court's decision. Strickland v. Strickland , 298 Ga. 630, 633 (1), 783 S.E.2d 606 (2016). We will not set aside the trial court's factual findings if there is any evidence to support them, and we defer to the trial court's credibility determinations. Saravia v. Mendoza , 303 Ga. App. 758, 758, 695 S.E.2d 47 (2010). We review de novo, however, the legal conclusions the trial court draws from the facts. Id.
The record shows that L. G. M. was born in April 2013 to the mother and her then-husband. L. G. M.'s father abandoned the marriage and the child when L. G. M. was approximately six months old, and the child has had no contact with her father since that time.1 F. W. was born in March 2015 to the mother and her then-fiancé.
Although the father and the mother were never married, the father legitimated F. W. and was awarded visitation with the child.
The mother had physical custody of both children from the time of each child's birth until August 2017. On approximately August 20, 2017, the mother separated from her second husband, Jordan Patterson, and the mother and the children moved out of the marital residence. Several days later, on August 24, 2017, the grandparents filed their petition seeking sole legal and physical custody of L. G. M., and the father filed his petition for modification of custody as to F. W. Both petitions sought ex parte relief, with the grandparents requesting an ex parte order granting them immediate temporary custody of L. G. M. and a restraining order barring the mother from having any contact with them. The father requested an ex parte order granting him immediate temporary custody of F. W. and a restraining order barring the mother from having any contact with him. The trial court granted the requested ex parte relief, and the children were removed from the mother's custody.
On December 21, 2017, the trial court held a consolidated temporary hearing on both the grandparents' petition for custody of L. G. M. and the father's petition for custody of F. W. The evidence presented at that hearing showed that since September 1, 2017, the mother had resided in a two-bedroom rental home, with the mother's brother-in-law paying the entire first year's rent in advance. Immediately after moving out of the marital residence she shared with Patterson and before the mother was served with the ex parte orders temporarily removing the children from her custody, the mother and her daughters spent approximately four nights with the mother of Drew Wachter.2
Prior to the ex parte orders being served, the mother drove a car provided by the grandparents. After the grandparents reclaimed that car, the mother's sister and brother-in-law provided a car for her, which is titled in the mother's name. At the time of the temporary hearing, the mother was working at a local Waffle House, where she worked various shifts six days a week. During her marriage to Patterson, the mother had worked as a sales consultant for Pure Romance, a company that marketed sexually-themed, adult novelties through in-home parties. Additionally, the mother acknowledged that she and Destiny Wachter (the wife of Drew) had contemplated a business venture where they would charge women for personal nude photo shoots. The mother's attorney objected to this line of questioning, but the trial court overruled the objection on the grounds that the information was relevant to the environment in which the children were being raised. The trial court subsequently allowed the grandparents to introduce into evidence 32 pictures of the mother in various states of undress, with the mother indicating that the photographs were meant to be used as part of the proposed business venture.3 According to the mother, the photographs were taken on approximately four different occasions. Some of the pictures were taken inside the marital residence she shared with Patterson and her daughters, while others were taken in or outside of a vacation home rented by the grandparents for a family vacation. The mother further testified, however, that her children were not present when the pictures were taken and had never seen the photographs.
The grandparents also introduced into evidence a child's lunchbox, containing drug paraphernalia designed to facilitate the smoking of marijuana.4 A marijuana grinder found inside the lunchbox was in the shape of a small ball that resembled a child's toy. On cross-examination, the mother acknowledged ownership of the lunchbox, and also that she had smoked marijuana during her marriage to Patterson. However, she denied smoking marijuana in front of her children or otherwise exposing them to drugs or drug paraphernalia. The mother further testified that she was willing to submit to a drug screen that day. Additionally, the mother stated that since losing custody of her children, she had seen a psychiatrist and been diagnosed with bipolar disorder
, depression, anxiety, and PTSD. The mother now met with a therapist on a weekly basis and took medication to treat the bipolar disorder.
Additional evidence introduced by the grandparents included copies of text messages between the mother and Patterson which showed that on several occasions the mother was away from home after midnight procuring marijuana for either herself or others. The mother explained that on those occasions, her daughters would have been home with Patterson and asleep. Additionally, the mother acknowledged that her children had slept in her bed when Patterson was also present, and sometimes slept with Patterson when the mother was out.
When questioned about her marital problems with Patterson, the mother admitted to having engaged in an extramarital affair. According to the mother, when she and Patterson fought, he would scream and holler and throw chairs and kick the baby gate over. Although the mother testified that she found some things on Patterson's phone that "concerned" her, she did not provide any information regarding the nature of those items.
The grandparents also introduced evidence concerning the mother's relationship with Drew Wachter. The evidence showed that Wachter was a convicted sex offender and was required to register as such.5 The mother admitted that she was aware of Wachter's criminal status and that she had a prior romantic relationship with him. She further testified, however, that she was no longer romantically involved with Wachter, although they did work together at the Waffle House. The mother admitted that she had been at Wachter's residence the day before the temporary hearing but claimed she was there to visit Wachter's roommate. Additionally, the mother denied ever allowing Wachter around her children, and she explained that although her children were with her during the three to four days she spent at the home of Wachter's mother, Wachter was not present in the home. The mother also stated that she would have no objection to the court including in any custody order a provision prohibiting Wachter from having contact with her children.
Prior to the temporary hearing, the mother was allowed two hours of supervised visitation with her children every other weekend. The mother explained that she was required to pay $70 for each visit to cover the cost of the supervisor. The mother presented the testimony of Christine Carroll, who...
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