Warren v. Smith
Decision Date | 23 March 2016 |
Docket Number | No. A15A1716.,A15A1716. |
Citation | 785 S.E.2d 25,336 Ga.App. 342 |
Parties | WARREN v. SMITH. |
Court | Georgia Court of Appeals |
Stearns–Montgomery & Proctor, Jennifer Kay Brown, for Appellant.
Meilissa Paige Smith, pro se.
RICKMAN
, Judge.
Mark Warren appeals from the final order entered on a complaint he filed against Melissa Smith, seeking a modification of custody of their minor child and a modification of child support. Pursuant to a judgment and decree of divorce, Warren and Smith were awarded joint legal custody and joint physical custody of the child. Warren challenges the trial court's failure to find sufficient grounds to warrant a change in custody and to award him primary physical custody of the child, and he contends that the trial court abused its discretion by failing to make specific findings of fact and conclusions of law to support its judgment after he had requested the court to do so.1 For the following reasons, we vacate the judgment to the extent that it denies Warren's request for modification of custody, and we remand the case to the trial court.
(Citations and punctuation omitted.) Lynch v. Horton, 302 Ga.App. 597, 600(4), 692 S.E.2d 34 (2010)
; see Daniel v. Daniel, 250 Ga.App. 482, 483 –484(2), 552 S.E.2d 479 (2001) ( ). The trial court may consider a variety of relevant factors in determining the best interest of the child. See OCGA § 19–9–3(a)(3)
.
At the end of the bench trial2 in this case, Warren's counsel stated on the record that he The trial court replied:
The trial court, in its order, failed to make any findings of fact and conclusions of law concerning Warren's request for modification of custody. In that regard, the court merely determined: “The Court does not find sufficient grounds warranting a change in custody[.]” In a footnote, the court stated that Warren had “requested that the court make written findings of fact, but subsequently withdrew that request by e-mail message received January 27, 2015, a copy of which is attached.” But no such e-mail was attached to the order, we found no such e-mail in our review of the appellate record, and in his appeal brief, Warren denies having withdrawn his request for findings of fact and conclusions of law.
Pursuant to Chapter 9 of Title 19 of the Official Code of Georgia which governs child custody proceedings, in all cases in which the custody of any child is at issue between the parents, the following pertinently applies:
If requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody shall set forth specific findings of fact as to the basis for the judge's decision in making an award of custody including any relevant factor relied upon by the judge as set forth in paragraph (3) of this subsection. Such order shall set forth in detail why the court awarded custody in the manner set forth in the order....
(Emphasis supplied.) OCGA § 19–9–3(a)(8)
. Moreover, pursuant to OCGA § 9–11–52(a) of the Civil Practice Act, “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.” (Emphasis supplied.) The Supreme Court of Georgia has held that, for the purposes of statutory construction, the word “shall” is to be generally construed as a mandatory directive. See Lewis v. State, 283 Ga. 191, 194(3), 657 S.E.2d 854 (2008) ; S. Crescent Newspapers L.P. v. Dorsey, 269 Ga. 41, 45(3), 497 S.E.2d 360 (1998) ; State v. Henderson, 263 Ga. 508, 510, 436 S.E.2d 209 (1993) ( ); and see Bonds v. Bonds, 241 Ga.App. 378(1), 527 S.E.2d 215 (1999) ( ); Doe v. Chambers, 188 Ga.App. 879, 881(2), 374 S.E.2d 758 (1988) ( )(punctuation omitted; emphasis supplied).
In this case, the appellate record clearly reflects that Warren requested the trial court to make findings of fact and conclusions of law, and the law mandates that he was entitled to them. “Findings of fact and conclusions of law enable the parties to specify the errors the trial court purportedly made,...
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