Sullivan v. Harper

• Decision Date: 22 October 2019
• Docket Number: A19A1629
• Citation: 352 Ga.App. 427,834 S.E.2d 921
• Court: Georgia Court of Appeals
• Parties: SULLIVAN v. HARPER.

352 Ga.App. 427

834 S.E.2d 921

SULLIVAN

v.HARPER.

A19A1629

Court of Appeals of Georgia.

October 22, 2019

Certiorari Denied June 1, 2020

Nancy I. Jordan, Atlanta, for Appellant.

Eugene P. Chambers III, Atlanta, Paul Brandon Duckworth, for Appellee.

Hodges, Judge.

Mary Julia Sullivan appeals the trial court's order clarifying a provision in the parenting plan incorporated into her divorce decree, finding her in contempt of certain provisions of the parenting plan, and awarding OCGA § 19-6-2 attorney fees to her ex-husband, John Anthony Harper. For the reasons that follow, we affirm in part, reverse in part, and remand with direction.

It is well established that "[t]rial courts have ‘broad discretion’ in ruling on a motion for contempt, and the trial court's ruling will be affirmed on appeal if there is any evidence in the record to support it." Killingsworth v. Killingsworth , 286 Ga. 234, 237 (3), 686 S.E.2d 640 (2009) ; see also Earle v. Earle , 312 Ga. App. 139, 140, 717 S.E.2d 720 (2011).

The record shows that Sullivan and Harper have two minor sons. Their older son, W. H., requires academic tutoring and various therapies for autism

spectrum disorder. The parents divorced in 2016, and the divorce decree incorporated a consent final parenting plan, awarding legal custody of the boys to both parents and primary physical custody to Sullivan, with a regular visitation schedule for Harper. The parenting plan contained several provisions that are relevant here:

• Both parties have the right to consult with and receive "any and all information, records, paperwork, report cards or other documents concerning the children" directly from the children's schools, camps, health care providers, tutors, therapy facilities, and the like, and "the other shall not object to that party so doing."

• "The parent who has physical custody of the children shall be responsible for taking them to their therapy appointments (Mother will not schedule a therapy appointment for the children during Father's parenting time without Father's written approval) and the other parent shall not attend that appointment, unless the other parent's attendance is specifically requested by the therapist."

• "[N]either party will disparage the other parent to any teachers, coaches, activity providers, doctors, tutors, dentists, healthcare professionals, or anyone else who may be involved in the children's life in a similar capacity."

• Both parties "have the right to a full and complete disclosure of any and all information relating to the children, and to directly request information and documents from any educational, health, summer camp, extracurricular or religious providers for the children[,]" and "neither will interfere with the other party's right to receive or obtain" such records.

In 2018, W. H. began seeing a new psychologist, who performed a comprehensive evaluation that required both parents to complete written questionnaires. It is undisputed that in her questionnaire, Sullivan expressed concern that Harper was "manipulative and childlike," lived with his "girlfriend" (who is actually his fiancée) and her two sons, emotionally abused and/or neglected W. H., and minimized the bullying W. H. experienced. In addition, under "Mental Health History," Sullivan wrote "Dad" next to drug/alcohol problems, domestic violence, physical/sexual abuse, ADHD, and anxiety.

After the evaluation, the psychologist scheduled feedback meetings to discuss W. H.’s needs and progress. Harper brought his fiancée to a feedback meeting. Sullivan complained, informed the psychologist that Harper was the "[o]nly" person authorized to attend the sessions, and insisted that Harper's "latest girlfriend" was not permitted to attend therapy sessions. At some point, Harper asked the psychologist for copies of W. H.’s records, including the questionnaire and other forms that Sullivan had completed. The psychologist sought permission from Sullivan to release this information, and Sullivan told the psychologist she wanted "to receive consultation prior to [W. H.’s] documents being released." Sullivan allowed the psychologist to release the forms the next day.

Harper subsequently filed a contempt petition, alleging that Sullivan had violated the parenting plan, and by extension the divorce decree, by willfully disparaging him to the children's doctors and/or therapists, willfully interfering with his right to receive information from the children's doctors and/or therapists, and misrepresenting to the children's therapist the scope of her final decision-making authority regarding medical issues. According to Harper, such action caused him substantial inconvenience and stress and caused the children's therapist to view him in a negative light. Harper also requested attorney fees necessitated by filing the contempt action.

Following a hearing, the trial court entered an order finding that Sullivan was indeed in willful contempt of the parenting plan for (1) disparaging Harper to the children's doctors and/or therapists, (2) interfering with and/or objecting to Harper's right to receive any and all information (verbal or documentary) from the children's doctors and/or therapists, (3) wrongfully instructing the children's doctors and therapists not to allow Harper's fiancée to attend meetings or appointments with Harper, and (4) advising the children's doctors and/or therapists to consult with Sullivan prior to releasing the children's records to Harper. In addition, the court

clarifie[d] paragraph 4 of said "CONSENT FINAL ORDER ON CUSTODY AND PARENTING PLAN" to provide that [Sullivan] does not have the right to determine or dictate who [Harper] may bring to meetings or appointments which [Harper] may have individually (and without [Sullivan] ), with any of the children's doctors and/or therapists, or any similar providers as outlined within paragraph 4.... [and] to provide that the children's doctors and/or therapists, or any other similar providers, do not need to consult, notify or advise [Sullivan] prior to releasing any documents, records or information immediately and directly to [Harper], upon his request.

(Emphasis in original.) According to the court, Sullivan's

right to make final decisions on medical issues regarding the children, does not allow her to request that she be notified or consulted by the children's doctors and/or therapists prior to releasing documents and information to [Harper] nor does same allow her to determine or dictate who [Harper] may bring to meetings or appointments which [Harper] may have individually (and without [Sullivan] ), with the children's doctors and/or therapists.

(Emphasis in original.) The court awarded Harper $12,324 in OCGA § 19-6-2 attorney fees and costs associated with bringing the contempt action.

Sullivan timely filed an application for discretionary appeal, arguing that the trial court's "clarification" was an impermissible modification of the divorce decree, that the court erred by finding her in contempt, and that the fee award was not supported by required factual findings. We granted discretionary review, and this appeal followed.

1. Sullivan asserts that the trial court impermissibly modified the divorce decree during the contempt proceeding by changing the terms of the parenting plan to allow Harper to bring his fiancée or any third party to attend feedback sessions with his child's therapist and to allow Harper to schedule his own appointments for W. H. without Sullivan's permission.¹ According to Sullivan, the trial court's clarification effected a change of custody by granting Harper the right to make medical decisions when the parenting plan gives her "final decision-making authority on medical issues, which encompasses who may consult with the children's providers and when the children should be taken to be seen by doctors and therapists." We find no reversible error.

It is well established that a trial court cannot modify custody determinations of a divorce decree in a contempt proceeding. See, e.g., Duncan v. Mughelli , 324 Ga. App. 465, 466, 751 S.E.2d 127 (2013) ("in a contempt proceeding, the trial court does not have authority to modify a final order of custody, which must be brought as a separate action") (citation and punctuation omitted).

A trial court is authorized, however, to interpret or clarify a divorce decree in the course of resolving contempt issues properly before it. The test for determining whether a trial court's ruling constitutes a proper clarification or impermissible modification of a divorce decree is whether the clarification or interpretation is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification.

(Citation and punctuation omitted; emphasis supplied.) Hamilton v. Hamilton , 292 Ga. 81, 82 (1), 734 S.E.2d 355 (2012) ; see also Doritis v. Doritis , 294 Ga. 421, 423-424 (3), 754 S.E.2d 53 (2014). "The trial court has the power to see that there be compliance with the intent and spirit of its decrees and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party." Earle , 312 Ga. App. at 141 (2), 717 S.E.2d 720.

Here, the parties were awarded joint legal custody, but if the parties could not agree after good faith consultation, the mother had the right to make "any and all final decisions" relating to certain issues, including medical issues.² While the parenting plan prohibited either parent from attending therapy-related appointments scheduled during the other parent's parenting time, unless required by the therapist, the plan was silent as to whether a parent could bring a third party to an appointment scheduled during that parent's parenting time. Sullivan argues that her decision-making authority permits her to exclude third parties, including Harper's fiancée, from attending feedback sessions with Harper that do not include W. H. The trial court, however, interpreted the parenting...