VanVlerah v. VanVlerah

• Decision Date: 26 May 2021
• Docket Number: A21A0700, A21A0704
• Citation: 859 S.E.2d 546,359 Ga.App. 577
• Court: Georgia Court of Appeals
• Parties: VANVLERAH v. VANVLERAH (two cases).

359 Ga.App. 577

859 S.E.2d 546

VANVLERAH

v.VANVLERAH (two cases).

A21A0700, A21A0704

Court of Appeals of Georgia.

May 26, 2021

John Ryd Bush Long, Augusta, for Appellant.

Smith & Smith, Beth Ann Smith, for Appellee.

Barnes, Presiding Judge.

These companion appeals arise out of divorce and contempt proceedings. In Case No. A21A0700, following the grant of his application for discretionary appeal, Andrew Merle VanVlerah ("husband") appeals from the final judgment and divorce decree awarding Katelynn VanVlerah ("wife") primary physical custody of their children and child support and granting him supervised visitation. The husband argues that the trial court erred in failing to make findings of fact and conclusions of law, which the husband requested before the court issued its judgment; erred in failing to adopt a permanent parental plan and incorporate it into the judgment; erred in failing to reference, adopt, or incorporate a child support worksheet into the judgment; and erred in considering evidence presented at the temporary hearing in making its final custody determination. In Case No. A21A0704, the husband appeals the trial court's order denying his motion for contempt against the wife. He contends that the evidence demanded a finding by the trial court that his wife was in willful contempt of the court's temporary order and that the court improperly relied on Uniform Superior Court Rule ("USCR") 6.4 (B).

As discussed below, in Case No. A21A0700, we vacate the trial court's final judgment and remand the case with direction that the court make findings of fact and conclusions of law and incorporate a parenting plan and child support worksheet into the judgment. In Case No. A21A0704, we affirm the trial court's contempt order.

Case No. A21A0700

1. Viewed in the light most favorable to the trial court's rulings,¹ the evidence showed that the husband and wife were married in 2012 and had five children together. The family lived in Jefferson County, Georgia, during the marriage. In early October 2018, the husband and wife separated, and the wife moved with the children to her mother's home in Michigan.²

Later in October 2018, the wife filed a complaint for divorce in the Superior Court of Jefferson County seeking primary legal and physical custody of the children, child support, alimony, equitable division of the marital property, and attorney fees. The husband answered and filed a counterclaim for divorce. Among other things, the husband sought joint legal custody and primary physical custody of the children.

Following a hearing, the trial court entered a temporary order in March 2019 awarding the parents joint legal custody of the children, designating the wife as the primary physical custodian of the children, and granting the husband supervised visitation in Michigan. Subsequently, in March 2020, the trial court conducted a bench trial on the divorce petition and counterclaim. In August 2020, before the trial court issued its final judgment and divorce decree, the husband requested that the court make written findings of fact and conclusions of law pursuant to OCGA § 9-11-52.

On September 11, 2020, the trial court entered its final judgment and decree of divorce. The trial court awarded the parties joint legal custody of their five minor children, designated the wife as primary physical custodian, and granted the husband supervised visitation. The court awarded the wife child support, alimony, and certain personal property that she had sought as part of the equitable division of the marital property. The judgment did not include any findings of fact or conclusions of law and did not incorporate a parenting plan or child support worksheet.

(a) The husband argues that the trial court erred in failing to include findings of fact and conclusions of law in the final judgment pursuant to OCGA § 9-11-52 (a). We agree.

OCGA § 9-11-52, which is found in the Civil Practice Act, provides in part:

(a) In ruling on interlocutory injunctions and in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law. If an opinion or memorandum of decision is filed, it will be sufficient if the findings and conclusions appear therein. Findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

(b) This Code section shall not apply to actions involving uncontested divorce, alimony, and custody of minors ....

"Findings of fact and conclusions of law enable the parties to specify the errors the trial court purportedly made, and enable the appellate court to review the judgment adequately and promptly." Grantham v. Grantham , 269 Ga. 413, 414 (1), 499 S.E.2d 67 (1998).

OCGA § 9-11-52 (a) applies to contested family law cases such as the present one. See Arthur v. Arthur , 293 Ga. 63, 65 (2) (a), 743 S.E.2d 420 (2013) (applying OCGA § 9-11-52 (a) to final judgment entered in contested divorce case); Sadler v. Rigsby , 338 Ga. App. 549, 551 (1), 790 S.E.2d 639 (2016) (applying OCGA § 9-11-52 (a) to child custody dispute); Warren v. Smith , 336 Ga. App. 342, 344, 785 S.E.2d 25 (2016) (applying OCGA § 9-11-52 (a) to child custody dispute). See generally OCGA § 19-5-8 ("The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony, and custody of minor children, except as otherwise specifically provided in this chapter [addressing divorce proceedings]."). And because the husband made his request for findings of fact and conclusions of law under OCGA § 9-11-52 (a) before the trial court entered its judgment, his request was timely.³ See Payson v. Payson , 274 Ga. 231, 235 (2), 552 S.E.2d 839 (2001) (concluding that "a party's § 9-11-52 (a) request for findings and conclusions in a bench trial is timely if made before the judgment is entered"); Sadler , 338 Ga. App. at 550 (1), 790 S.E.2d 639 (concluding that request for findings and conclusions under OCGA § 9-11-52 (a) was timely when made prior to trial court's written ruling). The trial court therefore was required to "find the facts specially and ... state separately its conclusions of law" in its final judgment as timely requested by the husband. OCGA § 9-11-52 (a). The trial court, however, failed to do so.

Because the trial court erred by not including findings of fact and conclusions of law in its final judgment, we vacate the judgment and remand with direction that the court make sufficient findings and conclusions to support its rulings on the contested family law matters at issue in this case. See Arthur , 293 Ga. at 66 (2) (a), 743 S.E.2d 420 ; Grantham , 269 Ga. at 414 (1), 499 S.E.2d 67 ; Sadler , 338 Ga. App. at 551 (1), 790 S.E.2d 639.

(b) The husband also maintains that the trial court erred in failing to adopt and incorporate a permanent parenting plan into its final judgment. Again, we agree.

OCGA § 19-9-1 (a) provides in part: "The final order in any legal action involving the custody of a child, including modification actions, shall incorporate a permanent parenting plan as further set forth in this Code section[.]" "[T]he parenting plan must include several details beyond custody and visitation, including, among many things, the rights of both parents to access the child's records and information related to education, health, health insurance, extracurricular activities, and religious communications." Williams v. Williams , 301 Ga. 218, 224 (3), 800 S.E.2d 282 (2017). See OCGA § 19-9-1 (b) (addressing requirements for parenting plan).

The final judgment entered in the present case did not incorporate or make any reference to a permanent parenting plan, and it did not otherwise include the specific details required under OCGA § 19-9-1 (b).

On remand, therefore, the trial court should work with the parties to formulate an acceptable parenting plan and either incorporate the same into its custody order or enter the plan separately. In this regard, we note that ... there may be additional, more recent evidence available for the trial court to consider both with respect to visitation and the required parenting plan.

Mashburn v. Mashburn , 353 Ga. App. 31, 48 (1) (b) (ii), 836 S.E.2d 131 (2019). See Williams , 301 Ga. at 224 (3), 800 S.E.2d 282 (vacating final judgment for failure to incorporate a permanent parenting plan and remanding the case for compliance with OCGA § 19-9-1 ); McFarlane v. McFarlane , 298 Ga. 361, 361-362 (2), 782 S.E.2d 29 (2016) (vacating a custody modification order for failure to enter a permanent parenting plan and remanding the case for compliance with OCGA § 19-9-1 ).

(c) The husband next contends that the trial court erred by failing to reference, adopt, or incorporate a child support worksheet into the final judgment. We agree.

" OCGA § 19-6-15 provides a process for calculating child support which, pursuant to subsection (m), requires the necessary information used in that calculation to be recorded on the child support worksheet." (Citation and punctuation omitted.) Moore v. Moore , 346 Ga. App. 58, 61 (4), 815 S.E.2d 242 (2018). The trial court should attach the completed child support worksheet and any applicable schedules to the final judgment, incorporate those documents by reference into the judgment, or enter the pertinent information from those documents directly into the judgment. Id. See OCGA § 19-6-15 (m) (1).

Here, a child support addendum was attached to the final judgment, and the addendum recited that a child support worksheet and schedules were "attached hereto or filed contemporaneously herewith" and were "a part of this addendum." However, no worksheets or schedules were in fact attached to the final judgment or child support addendum. Additionally, while proposed child support worksheets were filed by the husband several months before entry of the...