Williams v. Williams

• Decision Date: 15 May 2017
• Docket Number: S17F0674
• Citation: 800 S.E.2d 282
• Parties: WILLIAMS v. WILLIAMS.
• Court: Georgia Supreme Court

301 Ga. 218

800 S.E.2d 282

WILLIAMS

v.WILLIAMS.

S17F0674

Supreme Court of Georgia.

Decided: May 15, 2017

Candace Ellene Rader, Candace E Rader P.C., 301 Tanner Street, Carrollton, Georgia 30117-0623, for Appellant.

Tamar Oberman Faulhaber, Faulhaber Family Law, LLC, 3180 North Point Parkway, Suite 103, Alpharetta, Georgia 30005, James H. Lewis, P.O. Box 1253, Douglasville, Georgia 30133-1253, for Appellee.

Boggs, Justice.

Appellant Nikita Denise Williams (Wife) and appellee Byron J. Williams (Husband) were divorced in June 2015. The final judgment and decree awarded sole legal and physical custody of their minor child to Husband, and granted Wife supervised visitation. We granted Wife's application for discretionary appeal to consider whether the child custody award should be vacated for the failure of the trial court to incorporate a permanent parenting plan. We conclude that the final judgment and decree must be vacated in part and the case remanded on this ground. We also vacate the award of attorney fees for the court, upon remand, to make the necessary findings of fact for the award of attorney fees to Husband.

Wife filed a complaint for divorce on November 4, 2013. On the same day, she filed a motion for emergency custody requesting ex parte relief and an emergency hearing. In this filing, she claimed that Husband had taken the minor child from the marital residence and refused to allow her to see him. She also claimed that Husband had a history of domestic violence, including a pending charge of simple assault, and mental health issues. In response, the trial court awarded

Wife temporary primary legal and physical custody of the child and scheduled a hearing for December 3, 2013. Husband filed an answer to Wife's complaint, a counterclaim for divorce, and a response to Wife's emergency motion denying the allegations. The hearing on the matter was reset to December 10, 2013.

At the December hearing, Wife's counsel failed to appear at the calendar call, although the court noted that counsel filed an untimely conflict letter. Wife appeared at the calendar call, but was not present when the case was called by the court and had not been excused. Following the hearing, the court ordered that Husband have visitation with the child every Saturday at a church, and set a hearing on the issues raised in Wife's ex parte request for custody "as well as temporary issues" for January 14, 2014. Prior to this hearing however, Husband filed a motion for contempt for Wife's refusal to allow him visitation as ordered.

On January 15, 2014, following a hearing, the trial court entered a temporary order awarding the parties joint legal and physical custody of the minor child, and ordering that they exchange the child each week, with Husband paying Wife $40 per week for child support. On December 29, 2014, the trial court entered a temporary consent order wherein the parties agreed to a holiday visitation schedule, the location where the child was to be exchanged, the allocation of home appliances, and the termination of Husband's child support payments. The order also provided that the parties would share custody of the child on a week-to-week basis.

Following a bench trial, the trial court, on June 9, 2015, entered a final judgment and decree awarding legal and physical custody of the child to Husband, granting Wife supervised visitation, awarding Husband child support and attorney fees, and requiring that Wife reimburse Husband for marital funds she retained. The order also required Wife to have a full and complete psychological evaluation performed and filed with the court in the event she desired to file any modification of her visitation rights.

Wife filed a motion and an amended motion for new trial. Husband filed a response to Wife's motions and a counterclaim for contempt alleging that Wife failed to make child support payments and pay attorney fees as ordered in the final judgment and decree, and asserting that Wife had interfered with his award of custody by informing the child's school that the child was deceased. The trial court denied Wife's motion for new trial on January 25, 2016.

1. Wife argues that the trial court denied her any meaningful visitation by failing to set forth specific visitation and leaving the visitation to the discretion of a third party. In deciding visitation,

the trial court has very broad discretion, looking always to the best interest of the child. When the trial court has exercised that discretion, this court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court's finding, this court will not find there was an abuse of discretion.

(Citations and punctuation omitted.) Bishop v. Baumgartner , 292 Ga. 460, 462, 738 S.E.2d 604 (2013).

The final judgment and decree provided that Wife "shall have ONLY SUPERVISED visitation TWICE per month at St. Julian's [Episcopal Church] in Douglas County. Plaintiff and Defendant shall cooperate with St. Julian's i[n] setting up the [Wife's] bi-monthly visits." In granting Husband custody of the child, the trial court found that Wife falsely accused Husband of abusing the child and observed that it was "afraid [Husband] would never get to exercise visitation with the child." The court noted in denying Wife's motion for new trial, that she repeatedly "wi[ld]ly exaggerated" or falsely accused Husband of family violence, and that her "unexplained bitterness as well as her sudden launching of a concerted vendetta against Husband ... started early on in the marriage and was on display throughout this litigation." The court also found that Wife kept the child from Husband without reason "creating unnecessary drama when the minor child was in her care[,] scaring the minor child, and delaying and stalling, all to the point that not one but two incarceration orders against Wife had to be issued" for her to produce the child.

Without asserting that she has been denied any visitation, Wife essentially contends that she was effectively denied visitation because the court failed to set forth a specific schedule and left visitation to the discretion of a third party. But we find no authority requiring the trial court to set specific dates and times in an award of visitation,¹ and the record here shows that visitation was not left to the sole discretion of a third party. The cases Wife cites in support of her argument are distinguishable. Shook v. Shook , 242 Ga. 55, 247 S.E.2d 855 (1978), was an appeal of a denied contempt petition. There, the final judgment and decree provided that the father of the minor children would have "reasonable" visitation privileges. Id. After being denied visitation under this arrangement, the husband filed a petition for contempt. Id. at 55-56, 247 S.E.2d 855. Specifically, husband sought to modify the ordered visitation to provide for specific dates and times of visitation. Id. at 56, 247 S.E.2d 855. The court denied his request. Id. We held that the trial court, in its contempt order, abused its discretion in refusing to specify times, places and circumstances for visitation because the parties' inability to agree between themselves on "reasonable" visitation resulted in an effective denial of visitation. Id. at 56 (2), 247 S.E.2d 855.

In Chandler v. Chandler , 261 Ga. 598, 409 S.E.2d 203 (1991), in a change of custody/contempt action, after the mother took the minor child out of the state without notice to the father in violation of the divorce decree, the trial court ordered that the mother have " ‘no rights of visitation with the child except that she may visit with the child at such times and places and on such conditions as are agreed to in writing by the parties.’ " Id. at 599, 409 S.E.2d 203. We held that the trial court abused its discretion in fashioning a solution effectively denying the mother any right to visit her daughter. Id. at 599 (1), 409 S.E.2d 203. And we noted that "less extreme arrangements, including limited and supervised visitation, could be instituted to satisfy the trial court's concerns that appellant might abduct the child if granted visitation." Id.

In this case, the court did not merely order "reasonable" visitation, nor did it leave visitation solely to the unfettered discretion of the custodial parent or to a third party. The court, within its discretion, required that visitation would occur twice per month at a particular location, a local church, with the days and times for those visits to be arranged by the church, in cooperation with Husband and Wife. The court therefore intended the parties to work together in setting up Wife's visitation. This arrangement alone shows no effective denial of visitation.

In contrast this appeal is from a final decree awarding a specific amount of visitation at a particular place to Wife, not unspecified "reasonable" visitation as in Shook or visitation only if the parties agree as in Chandler . And Wife has made no showing here that either the church or Husband has denied her the right to bi-monthly visits granted by the court's order. Accordingly, her challenge to the trial court's order, in anticipation that she will be denied visitation, fails. Wife has shown no abuse of the trial court's discretion here.²

Wife argues further that prior to the court's order, the parties had sixteen months of successful week-to-week exchanges of the child and there was no evidence to justify restricting her visitation. But the trial court's findings underlying its ruling on visitation are supported by some evidence, including that outlined below in Division 2. We therefore conclude that its ruling granting Wife supervised visitation twice per month was not an abuse of discretion. See Moon v. Moon , 277 Ga. 375, 377 (4), 589 S.E.2d 76 (2003) (within trial court's discretion to require supervision of non-custodial parent's visitation with child).

2. Wife argues that the trial court erred by relying on evidence from temporary...