Norman v. Norman

• Decision Date: 07 November 2014
• Docket Number: No. A14A0922.,A14A0922.
• Citation: 329 Ga.App. 502,765 S.E.2d 677
• Court: Georgia Court of Appeals
• Parties: NORMAN v. NORMAN.

329 Ga.App. 502

765 S.E.2d 677

NORMAN

v.NORMAN.

No. A14A0922.

Court of Appeals of Georgia.

Nov. 7, 2014.

Dodd & Burnham, Wilburn Michael Burnham II, for Appellant.

William C. McCalley, Moultrie, for Appellee.

Opinion

DILLARD, Judge.

Darby Norman (“Darby”) appeals the trial court's order finding her in contempt of a settlement agreement that she entered into with her ex-husband, Toby Norman (“Toby”), as part of the parties' divorce decree, and denying her motion to strike the overnight-guest provision in that agreement. She contends on appeal that the trial court erred by (1) enforcing the overnight-guest provision when it violates public policy, and (2) misinterpreting binding precedent. For the reasons set forth infra, we affirm.

The record reflects that the Normans divorced in February 2013, and that a settlement agreement entered into by the parties in January 2013 was thereafter incorporated into their final judgment and decree of divorce. The settlement agreement awarded the parties' joint legal custody and Darby primary physical custody of the Normans'two minor daughters, and included, in relevant part, the following provision:

When the minor children of the parties hereto are in either of the party's physical custody, neither party shall allow a non-relative adult person of the opposite gender to remain overnight in the same house, apartment, or other place being occupied by that party and the minor children, provided, however, this restriction shall not apply to an overnight guest of the minor children.

On March 28, 2013 (only one month after entry of the divorce decree), Toby filed a complaint for contempt against his ex-wife, alleging that Darby had repeatedly violated this provision by allowing her boyfriend to stay in her home overnight while she was in physical custody of the children. In response, Darby filed a motion to strike the provision from the decree, arguing that the provision was “overly broad, overly burdensome, and unenforceable under the circumstances.”

Following a hearing at which neither party testified, but after which the trial court considered deposition testimony filed by the parties, the trial court determined that Darby had admitted to violating the overnight-guest provision and that the violation of this provision by either party “would be harmful to the minor children's emotional well-being.” In reaching its conclusion, the trial court noted that Darby understood and agreed to inclusion of the provision in the settlement agreement with the advice of counsel, and that at least one of the parties' daughters was aware of the provision and that her mother was in violation of it by engaging in prohibited behavior, which the trial court determined was knowledge “detrimental to the children's emotional well-being.”¹ Accordingly, the trial court denied Darby's motion to strike the provision, determining that the provision was “narrowly-drawn, rationally related to the harm it seeks to protect, and in the best interests of the children in this case.” Further, the trial court granted Toby's motion for contempt. This appeal by Darby follows.

Darby contends that the trial court erred in enforcing the overnight-guest provision because it violates public policy and because the court misinterpreted binding precedent. We disagree.

Although Darby is correct that it is the express public policy in Georgia to “encourage that a child has continuing contact with parents ... who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship,”² and that contracts “against the policy of the law cannot be enforced,”³ the overnight-guest provision in the parties' settlement agreement and divorce decree is not violative of these public policies.

The overnight-guest provision quoted supra is neither overly broad nor unduly burdensome. Indeed, this provision applies to both parties and prohibits unrelated overnight adult guests of the opposite gender—a restriction that neither singles out one particular individual for a blanket prohibition nor includes relatives. As such, it is distinguishable from provisions imposed by trial courts that this Court and our Supreme Court have deemed overly broad and/or unduly burdensome, and thus unenforceable, in the absence of a showing of harm.⁴ Additionally, the provision does not make an arbitrary distinction based upon race, sexual preference, or any other such classification.⁵

The provision is also narrowly tailored to only prohibit the overnight stay of an unrelated adult member of the opposite gender in either party's home, as opposed to a provision that applies at all times.⁶ And despite Darby's argument that the provision is “arbitrary” because (1) the restriction does not prohibit an unrelated adult member of the opposite gender from remaining in her home after the children have fallen asleep and returning before they wake up, and (2) the provision contains an exception for vacations,⁷ these aspects of the parties' settlement agreement instead demonstrate exactly why the overnight-guest provision simply cannot be viewed as overly broad or unduly burdensome.⁸

Finally, Darby contends that the trial court erred in enforcing the overnight-guest provision when there was no showing of harm justifying such a restriction. This argument is a nonstarter. Indeed, even without the trial court's explicit finding that these children would be harmed if the provision went unenforced,⁹ the fact remains that this provision was entered into by consent of the parties prior to the trial court's entry of its final order incorporating the settlement agreement. Given this posture, the imposition of this provision is procedurally inapposite to cases in which the trial court modifies an existing agreement or imposes such a provision on parties sua sponte.¹⁰ And historically the law has recognized that “natural bonds of affection lead parents to act in the best interests of their children.”¹¹ Thus, in the absence of any evidence rebutting same, we presume that both Toby and Darby were acting in the best interests of their children when they agreed (with the advice of counsel no less) to enter into a settlement agreement that included the overnight-guest provision, which, again, does not violate public policy because it is neither overly broad nor unduly burdensome. Suffice it to say, if Darby did not believe that such a provision was in the best interests of her children, she should not have agreed to its inclusion in the settlement agreement.¹²

Accordingly, for all of the foregoing reasons, we conclude that the trial court did not err in enforcing the overnight-guest provision or in holding Darby in contempt for violating same,¹³ and we affirm the court's judgment.

Judgment affirmed.

DOYLE, P.J., and MILLER, J., concur.

1 Toby's deposition testimony revealed that the children voluntarily share information with him and that they “know [Darby's behavior is] wrong ... because the way we have raised them up to this point.” Toby further testified that the children had asked why he and Darby were still “fussing,” and that he had explained to the eldest daughter, then nine years old, that her mother was “not supposed to have overnight company.” Then, when Darby's attorney pressed Toby as to whether he had told the eldest daughter that his ex-wife was “an adulteress,” he responded that the child discovered that her mother was having an affair with her boyfriend before the divorce while “playing on [Darby's] phone and [seeing] a bunch of texts coming from [her boyfriend], inappropriate texts.”

2 OCGA § 19–9–3(d).

3 OCGA § 13–8–2(a).

4 See Ward v. Ward, 289 Ga. 250, 250–51(1), 710 S.E.2d 555 (2011) (holding that trial court abused its discretion in amending visitation provision in final decree to provide that mother “ ‘shall not have any overnight male guests while the minor children are present’ ” because the provision would prohibit the mother “from having visitors with whom she has no romantic relationship”); Arnold v. Arnold, 275 Ga. 354, 354, 566 S.E.2d 679 (2002) (holding that trial court abused its discretion in prohibiting children “from any contact with a certain named friend of Wife” when there was “no evidence that the relationship between Wife and her friend was or will be harmful to the children, or that they ever engaged in any inappropriate conduct in the presence of the children”); Brandenburg v. Brandenburg, 274 Ga. 183, 184(1), 551 S.E.2d 721 (2001) (holding that trial court abused its discretion in prohibiting father from exercising visitation with children in the presence of his girlfriend, even if the two should marry, when there was no “evidence that such relationship had or likely would have a deleterious effect on the children beyond that normally associated with divorce or a parent's remarriage”); Katz v. Katz, 264 Ga. 440, 440, 445 S.E.2d 531 (1994) (holding that trial court abused its discretion “regarding the provisions of the final judgment pertaining to visitation in the event the mother moves”). But see Mongerson v. Mongerson, 285 Ga. 554, 556(2), 678 S.E.2d 891 (2009) (holding that trial court's decision to prohibit children's exposure to paternal grandparents was not an abuse of discretion when evidence showed that grandparents “had been physically and emotionally abusive of the children”), overruled on other grounds by Simmons v. Simmons, 288 Ga. 670, 706 S.E.2d 456 (2011).

5 See Mongerson, 285 Ga. at 555–56(2), 678 S.E.2d 891 (holding that trial court erred in prohibiting husband “from exposing the children to his homosexual partners and their friends,” which was “an arbitrary classification based on sexual orientation”); Turman v. Boleman, 235 Ga.App. 243, 243–44, 510 S.E.2d 532 (1998) (finding unenforceable a settlement-agreement provision that prohibited mother's exercise of visitation rights “in the...