Todd v. Casciano

• Decision Date: 03 July 2002
• Docket Number: No. A02A0775.,A02A0775.
• Citation: 569 S.E.2d 566,256 Ga. App. 631
• Parties: TODD v. CASCIANO.
• Court: Georgia Court of Appeals

569 S.E.2d 566

256 Ga. App. 631

TODD v. CASCIANO.

No. A02A0775.

Court of Appeals of Georgia.

July 3, 2002.

Reconsideration Denied July 22, 2002.

Deming, Parker, Hoffman, Green & Campbell, Richard A. Campbell, Elizabeth N. Harrison, Norcross, for appellant.

Peevy & Lancaster, Donn M. Peevy, Lawrenceville, for appellant.

POPE, Presiding Judge.

We granted Joan Todd's application to appeal an order of the Juvenile Court of Gwinnett County changing physical custody of the parties' five children to the natural father.¹

After ten years of marriage, Todd (age forty-two at the time of the hearing) and Peter Casciano (age thirty-nine at the time of the hearing) were divorced on June 14, 1995, shortly after their fifth child was born, and the divorce decree awarded the parents joint custody of their children. The parties agreed that Todd would have primary physical custody. Based on a court order dated January 2000, the children resided with Todd nine days out of every fourteen-day period and with Casciano for the rest. On August 24, 2000, Casciano filed a petition to change custody and sought an order of contempt. In Count 1, he claimed that circumstances had changed that had adversely affected the children in that Todd "[was] living in a meretricious relationship in an open manner with a member of the opposite sex in the presence of the minor children." In Count 2, he alleged that Todd should be held in contempt for violating a provision of the divorce decree, which provided that "[n]either party shall cohabitate [sic] with a person of the opposite sex, not a relative, in the presence of the children."

After hearing the evidence, the juvenile court ordered that the parties retain joint legal custody, but provided that the father have primary physical custody and that the mother have fairly typical visitation rights. The court based its decision on three reasons concerning Todd: "(1) [that she was] continually cohabiting with boyfriends with the children; (2) [that she provided a] chaotic and unstable home environment that is psychologically and morally damaging to the children; and (3) [because of] her behavior toward the children, including hitting them, driving them home at 4-5 A.M." The court ordered Todd to make child support payments to Casciano and awarded him $6,000 of attorney fees. At the time of trial, the children were approximately twelve, eleven, nine, eight, and six years old; the two oldest and two youngest are girls.

1. In five separate enumerations of error, Todd contends that the evidence was insufficient to support each of the juvenile court's three findings, that it applied an erroneous definition of cohabitation in making its decision, and that there was no showing of harm to the children. Therefore, she concludes, it abused its discretion in changing primary physical custody.

A trial court is authorized to modify an original custody award upon a showing of "new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child." (Citations, punctuation and emphasis omitted.) Evans v. Stowe, 181 Ga.App. 489, 491(4), 352 S.E.2d 811 (1987). See also OCGA § 19-9-1(b); Lightfoot v. Lightfoot, 210 Ga.App. 400, 403(3), 436 S.E.2d 700 (1993). The proof must show both a change in conditions and an adverse effect on the child or children. See, e.g., Saxon v. Saxon, 207 Ga.App. 471-472, 428 S.E.2d 376 (1993); Livesay v. Hilley, 190 Ga.App. 655, 656-657(2), 379 S.E.2d 557 (1989). "The duty of the court in all such cases shall be to exercise its discretion to look to and determine solely what is for the best interest of the child or children and what will best promote their welfare and happiness...." OCGA § 19-9-3(a)(2). On appeal of such a case, this Court will affirm the trial court's decision if there is any reasonable evidence to support it. Hayes v. Hayes, 199 Ga.App. 132, 133, 404 S.E.2d 276 (1991).

Evidence was presented at trial that showed that in the year 1999, Todd met William Roger Hall over the Internet, and in February 2000, they began a relationship, including a sexual relationship, that lasted for about nine months. During the summer of 2000, after school was out, Todd drove fifty to seventy-five miles from her home in Snellville to Dallas, Georgia on as many as five or six occasions, with all the children, to stay with Hall at his house for one to three days at a time. She would sometimes leave Hall's house very early to return to her home in Snellville, apparently to open the day care that she ran in her home. For example, according to a private investigator, they left at 4:50 a.m. on one occasion and 4:44 a.m. on another. Todd admitted that this required getting the children up at 4:00 or 4:30 a.m.

Todd also admitted spending the night there at least two dozen times herself, presumably at times when the children were with Casciano, but denied sleeping with Hall when the children were there. She insisted that she took the children with her because she wanted Hall to get to know her children better, and because the entire group would plan activities that made it more convenient to stay at Hall's house. She also denied that Hall ever spent the night at her house in Snellville.

The relationship lasted from about March to December, but there is no evidence that the children went to Hall's house after August. Indeed, Casciano admitted that since August 2000, when he filed the action for a change of custody and contempt, Todd ceased taking the children to Hall's house.

The evidence at trial raised some concern about Todd's credibility, primarily because she stated in response to discovery questions that the children stayed overnight at Hall's house only once. Then at trial she testified that it happened twice. Yet other evidence showed more visits. Also, one of the children said that she had been in the bed with Todd and Hall on one occasion when she awoke during the night and walked into their room, apparently because she had become scared. That testimony contradicted Todd's assertion that she did not sleep with Hall while the children were there. ²

A parental fitness evaluation was performed on Todd by Dr. Elizabeth Ellis, Ph. D., clinical psychology. After meeting with Todd, giving Todd certain psychological tests, interviewing only one of the children, interviewing four other witnesses, and reviewing various documents, she found:

Ms. Todd does appear to have a history of showing poor judgment regarding her dating of men and involving her children in these relationships. She appears to have involved herself with a much younger man without giving thought to whether he would be suitable as a stepfather to 5 children, only to find that he was not up to this task.... Given these involvements and her strong interest in meeting men on the internet, her pursuit of a love interest is an over-riding interest at this time. She does not appear to have a clear sense of how to keep these relationships separate from her children and to make suitable selections of partners. She appears to make these decisions on impulse and rationalize them later.

She also concluded, "[Todd] appears to make decisions about her personal life and the children's lives in a haphazard manner, sort of going with what suits her at the moment, without much deep thought as to the implications of her decisions. She appears to gloss over possible negative effects of her behavior on her children."

Dr. Ellis noted, however, that due to the limited nature of what the court ordered her to do, she could not determine whether the Todd home was a chaotic and unsupervised environment, and she did not have enough information to determine whether Todd's cohabitation with Hall had a detrimental effect on the children. She stated, "Further interviews with the children and teachers would broaden our information about the possible impact of Ms. Todd's behavior on the children, as well as yield information as to their attachment to her and to their father."

Casciano testified that in his opinion Todd's behavior was very destructive morally for the children. He testified that the message that Todd was giving them was inconsistent with what they were getting when they went to church. He explained that "their morals get watered down," and he was especially concerned about the message it gave his oldest daughter. He said the children "are put in potential harm if we don't know a person and we bring them overnight." He also testified that getting up so early to drive back was detrimental because one time two of the children had soccer games that day, and such exertion in the heat was not good without plenty of rest. In general, he said he was worried for his children's safety in connection with his perception that Todd got involved with men she did not know well and exposed the children to the men. He also testified that there have been several occasions when Todd did not make sure that an adult was present to supervise the older children when they got out of school, including one incident when Todd dropped the oldest child off at a restaurant with some of her friends for thirty minutes, but without a parent present.

He admitted that his children were all happy, healthy, intelligent, and well adapted, but he added that they were starting to have behavioral problems in school. He introduced documents written by his 12-year-old daughter and published on her website that appeared to be a personal advertisement, which in his opinion reflected the bad influence of Todd. Indeed, it was similar to biographical information that Todd maintained on the Internet. He introduced evidence that one of his children's grades had recently changed markedly for the worse in one subject. It also reflected that the child's behavior had changed from satisfactory to needing improvement.

Todd admitted that one child's grades in math and science had fallen off in the fall of 200...