Weiss v. Grant
| Decision Date | 12 June 2018 |
| Docket Number | A18A0002 |
| Citation | 816 S.E.2d 335,346 Ga.App. 208 |
| Parties | WEISS v. GRANT. |
| Court | Georgia Court of Appeals |
Beverly L. Cohen, Roswell, for Appellant.
Martin Enrique Valbuena, Dallas, for Appellee.
This appeal challenges a trial court order modifying a child custody order from another state and ordering payment of a child support arrearage. Contrary to the appellant’s claims, the trial court had jurisdiction to modify the foreign custody order. The court did not err in modifying the prior order. The order addresses the appellee’s past misconduct and does not exceed the scope of the court’s discretion. But the appellant is correct that the trial court erred in ordering the appellee to repay a child support arrearage at the rate of $100 per month, which improperly postpones the bulk of the payments until after the children have reached the age of 18. Accordingly, we affirm in part and reverse in part.
Sarah Weiss and Larry Grant were married in 2007, separated in 2008, and divorced in 2011. The final divorce decree, entered by the Superior Court of Paulding County, Georgia, found that the parties had two minor children, L.G. and T.G.; that Weiss and the children were residents of South Carolina; and that a child custody action was pending in a South Carolina Family Court.1 The South Carolina court had previously entered a temporary order giving the parents joint custody of the children, designating Weiss as the primary physical custodian, and awarding Grant one week of visitation each month.
In April 2011, after a scheduled visitation, Grant failed to return the children to Weiss, purportedly because Weiss was allowing a convicted child abuser to be around the children. Weiss has disputed that allegation. Grant apparently moved out of his home in Paulding County, took the children to live with him at different homes both in and out of state, and concealed those locations from Weiss. On April 27, 2012, the South Carolina court entered a final custody order finding that Grant had fled with the children and that they were still missing, granting sole custody of the children to Weiss, and suspending Grant’s visitation.
In October 2012, Grant and the children were found by police living in Alabama. Grant was arrested on an outstanding South Carolina warrant and the children were returned to Weiss. Grant pled guilty in South Carolina to a misdemeanor charge of interfering with child custody and was given a probated sentence, which he completed.
Grant filed a complaint in Paulding County Superior Court for modification of the South Carolina order which had awarded sole custody to Weiss and had suspended his visitation. Weiss filed an answer and motion to dismiss the action for lack of jurisdiction. The trial court denied the motion to dismiss, finding that it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), OCGA § 19–9–40 et seq. A hearing was held on July 1, 2015, during which the trial judge stated that while he was not, at that point, going to change custody, he was going to appoint a psychologist or counselor to evaluate the family and make a recommendation to the court on "the question of what to do about these children and ... their parents in the future." The court directed the parties to meet and see if they could agree on a person to conduct the evaluation.
On September 9, 2015, the trial court entered a temporary order which, pursuant to the parties’ agreement, appointed clinical psychologist Dr. Robert Shaffer to evaluate the family and make a recommendation about what "is in the [c]hildren’s best interests regarding re-introducing [Grant] into the [c]hildren’s lives." The order reiterated that the court was not, at that point, going to modify custody. But the order temporarily awarded Grant two hours per week of supervised visitation.
Over a year later, on December 16, 2016, court held a final hearing at which Dr. Shaffer was qualified as an expert witness. Dr. Shaffer testified, among other things, that he had no concerns about any issues that would prevent Grant from having a full relationship with his children; that the children were connected and emotionally bonded to Grant; that he believed Grant could adequately meet the needs of the children; that Grant’s abduction of the children was based on a genuine protective instinct and concern about the children’s welfare; and that Grant understood what he did was wrong and was not inclined to commit such an act again, and would instead avail himself of other resources to protect the children. Dr. Shaffer also testified not only that there was no reason to restrict the children from supervised visitation with the father, but that unsupervised visitation would actually be healthier for the children. Dr. Shaffer further opined that, in assessing the family as a whole, it would be appropriate for Grant and Weiss to share joint legal custody.
On December 27, 2017, the trial court entered a final order modifying the South Carolina custody order. The trial court found that a change in custody was in the best interests of the children, ordering that Weiss and Grant have joint legal custody of the children, awarding Weiss primary physical custody, and awarding Grant visitation rights. Weiss filed a motion for new trial, which the trial court denied. Weiss appeals.
Weiss contends that the trial court lacked jurisdiction to modify the South Carolina custody order. Because the parties and their children no longer resided in South Carolina and jurisdiction was otherwise proper in the trial court, the argument is without merit.
(Emphasis supplied.)
Jackson v. Sanomi , 292 Ga. 888, 889–890, 742 S.E.2d 717 (2013) (citation and punctuation omitted).
In the instant case, the trial court expressly found in its 2017 final order that Grant had lived in Georgia since 2012 and that "[a]t the time this action was filed, [Weiss] and the [c]hildren were residents of Paulding County Georgia, and Georgia was the home state of the [c]hildren." The trial court further found in its final order that "at the time this lawsuit was filed and up until the time of trial, Georgia was and has remained the home state of the [c]hildren." Likewise, in its order denying Weiss’ motion for new trial, the trial court reiterated that it had "previously found on multiple occasions, including in section 4 of the Final Order, that Georgia was and remained the home state of the children at the relevant times prior to and during the course of this litigation, and that none of the children, parents, or persons acting as parents resided any longer in South Carolina."
Nevertheless, Weiss argues on appeal that no determination was ever made that Georgia was the home state of the children at the time the complaint was filed. But as recounted above, the record plainly shows that the trial court expressly made that precise determination multiple times. Weiss has pointed to no evidence contradicting that determination; on the contrary, she admits in her appellate brief that she and the children were living in Georgia at the time this action was filed. Accordingly, given the findings that the children and parents no longer resided in South Carolina and that Georgia was the home state of the children at the time the action was filed, the trial court "properly assumed jurisdiction pursuant to OCGA § 19–9–63 to try proceedings filed in the Georgia court seeking to modify the [South Carolina] court custody determination." Lopez v. Olson , 314 Ga.App. 533, 538 (2), 724 S.E.2d 837 (2012).
Weiss enumerates that the trial court erred in awarding the parties joint legal custody. Her arguments in support of this enumeration are without merit.
Weiss contends that the trial court dismissed Grant’s claim for joint legal custody during the hearing on July 1, 2015, and therefore it had no authority to reconsider that claim in its final order. But contrary to this contention, the trial court did not dismiss the claim for joint legal custody at the hearing.
Near the end of the hearing, the judge announced, "I don’t plan on changing the issue of joint legal custody at this particular point in time ." (Emphasis supplied.) After counsel for Weiss asked the judge if he was granting her motion for a directed verdict on the joint legal custody claim, the trial court did not rule on the motion, and instead stated, ...
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