Moore v. Moore-McKinney, A09A0262.

• Decision Date: 06 May 2009
• Docket Number: No. A09A0262.,A09A0262.
• Citation: 678 S.E.2d 152,297 Ga. App. 703
• Parties: MOORE v. MOORE-McKINNEY.
• Court: Georgia Court of Appeals

678 S.E.2d 152

297 Ga. App. 703

MOORE v. MOORE-McKINNEY.

No. A09A0262.

Court of Appeals of Georgia.

May 6, 2009.

Anthony B. Moore, pro se.

Baskin & Baskin, Carol S. Baskin, Kristen E. Kubala, Marietta, for appellee.

ADAMS, Judge.

Anthony B. Moore and Janeene H. Moore-McKinney ("McKinney") married in 1994 and divorced in 2002. Legal custody of their two minor children was awarded to Moore and McKinney, jointly, and McKinney was designated as primary physical custodian. On February 6, 2008, Moore filed a petition in superior court to modify the divorce decree's visitation schedule. Following an evidentiary hearing, the trial court issued its final order of modification and awarded attorney fees to McKinney.

On appeal, Moore contends that the trial court erred in preventing him from introducing evidence of McKinney's mental health history, altering his Wednesday visitation schedule, refusing to change the visitation drop-off location, and imposing restrictions on his ability to carry a weapon. Moore further contends that the trial court erred (i) in refusing to accept his parenting plan, (ii) in awarding attorney fees to McKinney, (iii) in failing to award him costs of litigation, and (iv) in requiring he pay the cost of preparing the record for appeal. For the reasons set forth below, we find: (i) that the final order of modification incorrectly reflected the parties' agreement as to Moore's Wednesday visitation schedule, and that the order be corrected upon remand; (ii) that the order failed to incorporate a parenting plan, which is mandated by OCGA § 19-9-1, and that a parenting plan be incorporated into the order upon remand; and (iii) that the order's award of attorney fees to McKinney be vacated and that the issue of fees and expenses be reconsidered by the trial court on remand. We otherwise find no merit in Moore's claims of error.

1. As a threshold issue, we address McKinney's claim that Moore's direct appeal of the trial court's final order of modification was improper.¹ McKinney argues that Moore was required to follow the discretionary appeal procedure set forth in OCGA § 5-6-35, and that his failure to do so requires that this appeal be dismissed for lack of jurisdiction. We disagree.

"Unless otherwise provided by law, an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal." OCGA § 5-6-37. OCGA § 5-6-34(a) further provides that "[a]ppeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts," including, among others, final judgments "except as provided in Code Section 5-6-35"² and, under the recently enacted OCGA § 5-6-34(a)(11), "[a]ll judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders."

McKinney argues that this is not a child custody case, and so does not fall within the purview of OCGA § 5-6-34(a)(11). It is true that Moore's petition was for modification of the divorce decree's visitation schedule, and visitation rights do not equal custody. See Atkins v. Zachary, 243 Ga. 453, 454, 254 S.E.2d 837 (1979). However, a "change in visitation amounts to a change in custody in legal contemplation since visitation rights (sometimes called visitation privileges) are a part of custody." (Citation and punctuation omitted.) Facey v. Facey, 281 Ga. 367, 369(2), 638 S.E.2d 273 (2006). See also Katz v. Katz, 264 Ga. 440, 441, 445 S.E.2d 531 (1994) ("visitation is an integral part of custody"); Nodvin v. Nodvin, 235 Ga. 708, 221 S.E.2d 404 (1975); Daugherty v. Murphy, 225 Ga. 588(2), 170 S.E.2d 428 (1969) ("visitation privileges are a part of custody").³ We conclude that Moore's petition was therefore a "child custody case" for purposes of OCGA § 5-6-34(a)(11).

Nevertheless, we must consider whether this case remains subject to OCGA § 5-6-35. "[A]n application for appeal is required when the `underlying subject matter' is listed in OCGA § 5-6-35(a). Therefore, the discretionary application procedure must be followed, even when the party is appealing a judgment or order that is procedurally subject to a direct appeal under OCGA § 5-6-34(a)." (Citations omitted.) Rebich v. Miles, 264 Ga. 467, 468, 448 S.E.2d 192 (1994). See also Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 256-257(1), 564 S.E.2d 715 (2002); Best Tobacco, Inc. v. Dept. of Revenue, 269 Ga.App. 484, 485, 604 S.E.2d 578 (2004).

Under the previous version of OCGA § 5-6-35(a)(2), this case would have been subject to the discretionary appeal procedure because the statute specifically included child custody cases.⁴ The General Assembly, however, removed all references to child custody cases in the amended version of OCGA § 5-6-35(a)(2), as applicable here.⁵ The language of OCGA § 5-6-35(a)(2) continues to refer to "other domestic relations cases ... not limited to ...." the specific types of domestic relations cases enumerated therein. At least as a matter of general classification, child custody cases are domestic relations cases.⁶ It is thus unclear what the General Assembly intended by its amendment to OCGA § 5-6-35(a)(2).

"In resolving this issue, we look to the literal language of the statute, the rules of statutory construction and rules of reason and logic, the most important of which is to construe the statute so as to give effect to the legislature's intent." State v. Nix, 220 Ga.App. 651, 652(1), 469 S.E.2d 497 (1996). "In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy." OCGA § 1-3-1(a). The literal language of OCGA § 5-6-35(a)(2), as amended, suggests that an appeal in any case classified as a domestic relations case is subject to the discretionary appeal procedure. Further, in Leonard v. Benjamin, 253 Ga. 718-719, 324 S.E.2d 185 (1985), our Supreme Court compared OCGA § 5-6-35(a)(2), as in effect before the 2007 amendment at issue here, to the preceding version of the statute, and found it was the intent of the legislature to add child custody habeas corpus actions to the purview of OCGA § 5-6-35, even though such cases were not specifically enumerated. See id. at 719, 324 S.E.2d 185. The import of Leonard is that the legislature intended the then applicable version of OCGA § 5-6-35(a)(2) to be interpreted broadly in light of the change in the law to add language including "other domestic relations cases," language which remains in the current version of the statute. See OCGA § 5-6-35(a)(2); Leonard, 253 Ga. at 718-719, 324 S.E.2d 185. See also Walker v. Estate of Mays, 279 Ga. 652, 653(1), 619 S.E.2d 679 (2005) (appeals in domestic relations cases must be brought by discretionary appeal).

Notwithstanding the foregoing, a comparison of the old law to the new law shows that, rather than expanding the operation of the statute, as was the intent of the legislature in the version of the statute at issue in Leonard, in its 2007 amendment the legislature pared OCGA § 5-6-35(a)(2) by omitting all references to child custody cases. Simultaneously, and importantly in our view, the General Assembly modified OCGA § 5-6-34(a) by adding OCGA § 5-6-34(a)(11), which provides for a direct appeal from child custody cases. The logical conclusion to be drawn from these changes to pre-existing law is that the legislature intended for child custody cases to be treated differently from other domestic relations cases for purposes of appeals. Accordingly, we find that it was the intent of the General Assembly to remove child custody cases from the operation of OCGA § 5-6-35(a)(2) when it excised references to such cases from the statute. To rule otherwise would be to ignore the apparent intent of the legislature while affording no practical effect to its 2007 amendment of OCGA § 5-6-35(a)(2). See, e.g., Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga.App. 521, 522, 629 S.E.2d 501 (2006) ("it is not presumed that the legislature intended to enact meaningless language") (citation omitted); Nix, 220 Ga.App. at 652(1), 469 S.E.2d 497 ("[w]here the literal language does not square with reason or intent, then the literal must yield") (citation and punctuation omitted). It follows that since Moore appeals from a final order in his child custody case, his direct appeal is proper and not subject to dismissal as urged by McKinney.

2. (a) Moore contends that the trial court erred in preventing him from introducing evidence of McKinney's mental health history. We disagree.

While cross-examining McKinney, Moore began an apparent question by stating⁷ "you had to seek the help of a mental health professional...." McKinney's counsel objected on the grounds that the issue was not relevant. The trial court sustained the objection and indicated its belief that Moore was asking about events that were 12 years old. Moore represented that he had only been trying to lay a foundation, and then proceeded to ask McKinney if she had tried to commit suicide. When it was revealed that Moore was asking about events in 1989, the trial court again sustained an objection.

"Evidence is relevant if it logically tends to prove, disprove, or shed light upon any material fact at issue in a case." Marshall v. State, 275 Ga. 740, 742(5), 571 S.E.2d 761 (2002). Citing OCGA § 19-9-3(a)(4)(B) and (D), Moore argues that the trial court was required to consider McKinney's prior acts of violence and contends that McKinney's "mental health history ... caused other prior acts of domestic violence against him." OCGA § 19-9-3(a)(4) is expressly applicable where the trial court makes a finding of the existence of family violence, but it did not do so in this case. See Welch v. Welch, 277 Ga. 808, 809-810,...