Moses v. King
| Decision Date | 27 September 2006 |
| Docket Number | No. A06A1249.,A06A1249. |
| Citation | 637 S.E.2d 97,281 Ga. App. 687 |
| Parties | MOSES v. KING. |
| Court | Georgia Court of Appeals |
Jack H. Senterfitt, Lambda Legal Defense and Education Fund, Inc., Atlanta, for Appellant.
Kelvin King, Duluth, pro se.
Following our grant of her discretionary appeal, Victoria Moses appeals the trial court's order granting Kelvin King's petition for the modification of custody of their daughter. She claims that the trial court erred in modifying custody because no adverse effect on the child was shown, and that there was no showing of new and material conditions arising subsequent to the original award. Moses additionally argues that the trial court impermissibly infringed upon her constitutional rights to parental autonomy by basing its change of custody on her living with her same-sex partner without any showing that this living arrangement harmed her daughter, and also infringed upon her liberty interest in her right to an intimate relationship of her choosing. Because we find that the evidence presented did not show that a material change in condition had occurred, we reverse the trial court's judgment.
When reviewing a child custody decision, this court views the evidence presented in the light most favorable to upholding the trial court's order. Gibson v. Pierce, 176 Ga.App. 287, 288, 335 S.E.2d 658 (1985). As ever, we are "mindful that the Solomonic task of assigning the custody of children lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility." (Citation and punctuation omitted.) Gordy v. Gordy, 246 Ga.App. 802, 803(1) 542 S.E.2d 536 (2000). Thus, if the record contains any reasonable evidence to support the trial court's decision on a petition to modify custody, it will be affirmed on appeal. Durham v. Gipson, 261 Ga.App. 602, 605(1), 583 S.E.2d 254 (2003).
So viewed, the record demonstrates that Moses and King are parents of a 12-year-old daughter. The couple lived together for a time, but, apparently, were never married. In December 2002, the child was legitimated by King, Moses and King were awarded joint legal custody, Moses was appointed the primary physical custodian, and King was ordered to pay $850 per month in child support.
After Moses filed an action for contempt in 2004 for King's failure to pay child support, on December 7, 2004, the court found King to be $16,500 in arrears in child support payments, ordered him incarcerated pending a payment of $5,000, set up a payment schedule for him to pay off the amount in arrears, and ordered King to continue future child support payments. The following day, King, pro se, filed a complaint for modification of child support and change of custody. In the change of custody complaint, King alleged certain circumstances had changed in that:
[Moses] has become irresponsible and has failed to provide adequate care for child. [Moses] has had several (4) same sex domestic partners of which the most recent resides in the household with the child. [The] Department of Family and Children Services has been contacted by Gwinnett County School regarding marks on child by Defendant involving same sex partner. Child is in continuous company of gay and lesbian adults. Child's grades have dropped since [Moses] was awarded primary physical custodian and changed her school. [Moses] has left minor child alone with other adults for long periods of time. [Moses] has failed to provide basic physical needs. The minor child has expressed to [King] the desire to reside with him and it is in the child's best interest to reside with [King], who has prepared to give her proper care.
Following a hearing, the trial court granted the petition, awarded primary physical custody to King, and ordered Moses to pay child support. The court expressed that,
My decision was not made on your [Moses'] sexual preference, and I don't want you to think that it was. I do find that there has been a change of circumstance, one of those changes in circumstance is not the nature of those relationships but the number of relationships that I believe that you've had and the number of women that you've brought into the home and the fact that you are in fact living with a partner now outside of marriage. And I understand that you can't marry a woman in the State of Georgia. But I did — and I think the evidence is clear that you and your partner are living together, and that's pretty standard for me in any heterosexual relationship. And when I have heterosexual parents who have divorced, it has always been the order of this Court that there will be no cohabitation, no meretricious relationships outside the presence of marriage. I don't allow women and men to live together in the presence of the child. And that's the situation I've got now. I don't know whether you will believe me or not, but I do want to be clear that it has nothing to do with the fact that the person living with you is female; it has to do with the fact that you are in what I view as a meretricious relationship in front of your child. And I do find that to be a significant change in circumstance.
The court had interviewed the minor child in private, and by agreement, neither the parties nor a court reporter was present. The trial court indicated at the hearing that it was persuaded by the child's comments. In the corresponding order, the court granted Moses visitation and ordered that she pay $416 per month in child support with such payments being offset by the amount of King's arrearage.
Moses filed a motion for new trial from this order, which the trial court granted in part and denied in part. In its order, the trial court essentially restated the terms of its earlier order, but granted Moses' motion for new trial "for the limited purpose of allowing the parties' minor child to either testify in open court or speak privately with the Court in the presence of a court reporter so that the child's testimony may be recorded." The trial court's findings of fact included that:
[Moses] has had at least two partners within the last few years, one of which currently resides in the home with [Moses] and the parties' minor child. [Moses] and her partner are involved in a meretricious relationship. [Moses] testified that on prior occasions she did have her previous partner spend the night while the child was in the residence.
. . .
[King] is married and has children with his current wife. [King] and his wife have been married since July, 2001. [King], his wife and two children, and his mother live in a four bedroom home. [King's] home provides a more stable environment for the minor child.
Moses, thereafter, filed an application for discretionary appeal which was dismissed because Moses did not comply with the procedures for seeking an interlocutory appeal, which were required as the order was not a final judgment. Subsequently, the trial court held a transcribed hearing at which the child testified, and then entered a "final judgment" in the case, incorporating the findings of facts from the previous orders, and also finding that the child "indicated that she wanted to spend equal time with each of her parents." The court awarded joint legal and physical custody of the child to the parties. The court also held that because the parties are to share physical custody, neither party would be obliged to pay child support to the other. The court did not address, however, the issue of King's repayment of his past due child support obligation.
Moses again filed an application for discretionary appeal, challenging the modification of custody and child support and the issue of King's repayment of his past due child support obligation. Again, because the trial court had scheduled a hearing on the support issue, no...
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