Williams v. Silvers
| Docket Number | A23A0208 |
| Decision Date | 06 June 2023 |
| Parties | WILLIAMS v. SILVERS. |
| Court | Georgia Court of Appeals |
Taleatha Williams ("the mother") appeals from the trial court's order granting Michael Silvers's ("the father") petition for modification of child custody and child support regarding the couple's three children and denying her motion for modification and contempt. Williams argues that the trial court (1) abused its discretion by granting the father's modification petition because it was contrary to the evidence and not in the best interests of the children; and (2) the trial court abused its discretion by denying and dismissing her contempt count alleged against the father in her first amended modification petition. For the reasons that follow, we affirm in part and vacate and remand in part.
This Court reviews for an abuse of discretion an order modifying or declining to modify child custody and child support, and evidentiary findings will be affirmed if there is any evidence to support them.[1] Additionally, a "trial court [has] wide discretion to determine whether court orders have been violated, and that determination is to stand on appeal in the absence of an abuse of discretion."[2]
Viewed in this light, the record shows that the consent final judgment and decree of divorce incorporating the parties' settlement agreement, parenting plan, and child support worksheet was entered on September 10, 2020 ("final agreement"). The parties had three children born in 2015, 2016, and 2018, and they shared joint legal and physical custody, rotating week-on/week-off custody beginning every Monday at 8:00 a.m. if there was no school. The mother had major decision-making authority for extracurricular activities, non-emergency healthcare, religious upbringing and educational decisions.[3] Neither party was responsible for paying the other party any child support, and they were required to split the expenses accrued for the children equally. The mother was tasked with maintaining the children's current health care plan unless health insurance through one of the parties' places of employment became available.
On March 2, 2021, the mother filed a petition for modification of custody, contending that she lived in DeKalb County Alabama, and the father lived in Gordon County, Georgia, at the time the final agreement was entered. She maintained that a material change in circumstances had occurred since entry of the final agreement, and it would be in the best interests of the children if she had sole physical custody.
The father responded and counter-petitioned for modification of custody, requesting that he be awarded primary physical and legal custody, that the mother be granted visitation, and that he be granted child support. On July 26, 2021, the mother amended her petition by adding a contempt claim against the father, alleging that he failed to give her right of first refusal, failed to allow her to contact the children by phone, failed to timely notify her about a move, and failed to pay certain monetary obligations under the settlement, including his half of the children's expenses and his portion of monthly payments toward debt accrued during the marriage.
The hearing did not occur until April 19, 2022, with the bulk of the evidence being the parties' testimony. The evidence showed that the mother had moved to northern Alabama a few months before entry of the final agreement, but during that time, she exercised her parenting time at her grandmother's home in Murray County, Georgia. During the year following the divorce, the oldest child attended virtual school through Gordon County, where the parties had lived in the marital home, and the mother began exercising her visitation in Alabama, where she lived with her then-boyfriend, whom she later married. At some point, the father left the marital home and moved into his grandmother's house in Murray County, Georgia, where he lived until approximately December 2021, when he moved in with his new wife. The mother's home in Alabama was about two hours and fifteen minutes away from the father's current home in Murray County, Georgia - a grueling commute during the mother's school-year parenting weeks. The mother would drive the children to their current school during her custody weeks, and her grandmother would pick them up after school until their step-father could retrieve them in the afternoon for the trip back to Alabama.
During the father's custody weeks, the mother testified that he would not pick up her phone calls, and she would call others to try and get in touch with the children, either their paternal grandmother or their step-mother. The mother testified that the father refused to co-parent with her and was hostile about working out disputes; she testified that they rarely spoke. The mother would attempt to call him, and he would tell her to text instead, and then he would ignore her text messages and not respond to her. The father stated that the mother either called while he was at work or too close to bedtime to speak to the children, and he contended that it was untenable to expect him to compromise on transportation when the mother moved so far from their previous marital home.
Pursuant to her authority over extra-curricular activities, the mother registered the children for gymnastics in Alabama, but the father refused to bring them on his parenting weeks. She attempted to arrange a visitation schedule swap with the father to facilitate the lessons, but he refused. Additionally, without her approval as final decision maker, he registered the children for softball and t-ball in Murray County, Georgia, and he told the mother that he would do as he liked. The father also refused to give one of the children her prescribed medication, stating that he thought it made her too sleepy, and he did not agree to her seeing certain physicians at an Alabama university.
Following the hearing, the trial court granted the father's counter-petition, denied the mother's petition for modification, and denied and dismissed the mother's contempt claim. The trial court did not make specific findings regarding the testimony, simply indicating that the parties stipulated to a change in circumstance and finding that the best interests of the children were served by the father being the primary physical custodian. This appeal followed.
1. The mother first argues that the trial court abused its discretion by granting the father's petition for custody modification because the ruling was contrary to the evidence presented at the hearing and in the record, and the ruling was not in the best interests of the children. We disagree.
In Georgia, there is a well established two-part test which the trial court must employ before instituting a change of custody. The trial court must determine whether there has been a material change in circumstances affecting the welfare of the child since the last custody award. If so, the trial court then determines whether the child's best interests will be served by a change in custody. In other words, the best interests of the child should be utilized in deciding the case once a change in condition has been established. While a best interests of the child standard applies to an initial determination of custody, it is applicable in a change of custody action only after there has been a showing of a change in condition materially affecting the child.[4]
In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to (A) The love, affection, bonding, and emotional ties existing between each parent and the child; (B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children; (C) The capacity and disposition of each parent to give...
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