Maxwell v. Johnson

• Decision Date: 11 October 2022
• Docket Number: A22A0750
• Citation: 365 Ga.App. 547,879 S.E.2d 642
• Parties: MAXWELL v. JOHNSON.
• Court: Georgia Court of Appeals

365 Ga.App. 547

879 S.E.2d 642

MAXWELL

v.JOHNSON.

A22A0750

Court of Appeals of Georgia.

October 11, 2022

Nancy Ingram Jordan, Kessler & Solomiany, Atlanta, for Appellant.

Henry Clay Collins, Collins Law, Fairburn, Jean Miller Kutner, Atlanta, for Appellee.

Dillard, Presiding Judge.

Stephanie Maxwell appeals from the trial court's grant of Bradley Johnson's petition for change of custody, the parenting plan, and the child-support addendum. Specifically, Maxwell argues the trial court abused its discretion or otherwise erred by, inter alia , granting Johnson's requested custody modification when he failed to establish a material change in circumstances. We agree and, for the reasons that follow, reverse.

When reviewing an order modifying a child-custody arrangement, this Court views the evidence in the record "in the light most favorable to the trial court's order and will affirm [that] decision if there is any evidence to support it."¹ Indeed, whether particular circumstances are sufficient to warrant a change in custody is "a fact question determined under the unique situation in each individual case."² And here, viewing the record in the light most favorable to the trial court's judgment, it shows that Maxwell and Johnson were never married but had a son together, P. M. J., who was born in 2008 and legitimated by Johnson. A parenting plan was eventually issued in 2011.

Under the terms of the parenting plan, Maxwell and Johnson were awarded joint legal custody, and Maxwell received primary physical custody of P. M. J. Johnson received visitation for the first and third weekends of each month with the parties alternating the fifth weekend.

In 2016, Johnson petitioned for a modification to the parenting plan but was denied by the trial court, which we affirmed in an unpublished opinion.³ And although it appears undisputed that Johnson filed another petition to modify in 2018, no such filing appears in the record.⁴ Then, on March 19, 2020, Johnson filed the instant petition for a change of custody.

In support of his assertion that a material change of circumstances occurred so as to warrant a change in custody, Johnson alleged that P. M. J. was (1) not receiving an appropriate amount of stability in Maxwell's home; (2) regularly subjected to Maxwell's mood swings and dangerous living conditions; (3) not living in an environment conducive to his health, education, or welfare; (4) not provided with a reasonable, safe, and stable residence; and (5) without adequate support.⁵ As a result, Johnson requested primary temporary and permanent legal and physical custody be transferred to him, and that child support be adjusted accordingly.

Following a hearing on the matter, the trial court granted Johnson's petition. In doing so, the court maintained the award of joint legal custody but changed primary physical custody to Johnson and awarded Maxwell visitation on the first, third, and fifth weekends of the month. Maxwell now appeals from the trial court's grant of Johnson's requested relief.

1. For starters, Maxwell argues the trial court abused its discretion by granting Johnson's requested custody modification when he failed to establish a material change in circumstances. We agree.

In any case in which a judgment awarding the custody of a child has been entered

... that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment.⁶

But the foregoing statutory subsection does not limit or restrict the power of a judge to "enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child."⁷ And because the trial court undisputedly denied Johnson's 2016 petition for modification and apparently never ruled upon a 2018 petition, the last custody award for the court to consider was the 2011 parenting plan.⁸ So, in this case, the trial court was permitted to consider whether a material change in circumstances had occurred since 2011⁹ —though its decision that no such material change of circumstances occurred up to 2016 had a preclusive effect.¹⁰

In this regard, a change of custody may be granted only if "a new and material change in circumstances affects the child."¹¹ So, when considering a petition for custody change, a trial court "must find that a material change in circumstances has taken place before it can consider whether modification of custody is in the child's best interests."¹²

In reaching its decision, the trial court considered an in-chambers conversation with P. M. J., who was just days away from his 13th birthday. The meeting was conducted at the request of the parties and with counsel having waived their presence. Indeed, during the hearing, counsel for both parties informed the court that they consented to it speaking with the child in chambers. Following this meeting, the court indicated that P. M. J.’s desire to spend more time with his father, and his "mature reasoning" and "concerns about some aspects of life in his mother's home," were persuasive, and thus, it factored P. M. J.’s wishes into its deliberations under OCGA § 19-9-3 (a) (6).¹³

The trial court also concluded that Maxwell was co-habitating with a boyfriend who—when exercising visitation with his own children—resorted to using a relative's home because of space issues in Maxwell's house.¹⁴ As for Johnson, the court found that he was in a stable marriage with two children (with whom P. M. J. had bonded), and that Johnson lived in a neighborhood surrounded by friends. As a result, the court concluded that P. M. J.’s desire to live in Johnson's home was "in his best interests" because of the sense of security, proximity to friends and their families, and his bond with his father and half-siblings.

The trial court also found that Johnson took an active role in P. M. J.’s education and that neither he nor his spouse had undermined Maxwell's authority under the previous child custody order—though Maxwell had "been less than malleable toward [Johnson]" and "acted petty and unreasonable toward [Johnson] regarding visitation, which had a negative impact on the child." Accordingly, the trial court found a material change in circumstances had occurred that substantially affected P. M. J.’s welfare, and the court awarded Johnson primary legal and physical custody. We will consider each of the trial court's findings in turn. a. The minor child's desires and concerns. As noted by the trial court, P. M. J. was "days away" from his 13th birthday at the time of the final hearing, but the court opined that the boy was "of advanced maturity and articulation," "expressed well-reasoned and articulated thoughts as to why he should spend more time in his father's residence," and "expressed mature reasoning as to his concerns about some aspects of life in his mother's home." But the court did not detail P. M. J.’s specific concerns or thoughts before explaining that—although not bound by the child's wishes—it was "persuaded by [his] desires" and had "factored those desires along with all other evidence in [its] deliberations."

OCGA § 19-9-3 (a) (6) provides that "[i]n all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody." But importantly, the judge "shall have complete discretion in making this determination, and the child's desires shall not be controlling."¹⁵ Additionally, the parental selection of a child "who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child."¹⁶

Here, the trial court made clear that it was not controlled by P. M. J.’s desires but that it found his wishes persuasive. Then, after detailing Maxwell and Johnson's respective living situations, the court concluded that P. M. J.’s own desires were "in his best interests" because there was a "sense of security in [Johnson's] home, his friend-group in the neighborhood, [and] the added bonus of a built-in support structure of multiple friend's [sic] families with appropriate adult supervision." The court also considered all of these facts when assessing the child's "strong desire to have more time with his father," concluding that the desire was "well founded."

While the facts determined by the trial court could certainly support the child's desires, nothing in the record established that these facts constituted a material change in circumstances. Indeed, Johnson conceded that Maxwell had been co-habitating with the same boyfriend since his 2016 petition to modify the custody agreement, and Maxwell testified they had been together for four-and-a-half years at the time of the final hearing. Further, there was no evidence the boyfriend's presence negatively impacted P. M. J. Instead, Johnson's testimony merely established that P. M. J. had started to "express[ ] a lot of interest about the boyfriend that comes in and out, in and out," and would comment that "[h]e's here again" when Johnson would return the child to Maxwell's house.

As to the evidence regarding the child's friend-group and the existence of an additional support system through their families, all of the testimony established that these same friends and families had relationships dating back more than six years to when Johnson and his wife first moved to their home. Accordingly, this too was not a new or material change in circumstances.

Thus, the facts the trial...