Blue v. Hemmans
327 Ga. App. 353
Ga. Ct. App.2014Background
- Hemmans petitioned Blue for a change in custody and child support after relocating with the children; trial court granted Hemmans sole physical custody and ordered Blue to pay support.
- Blue appealed, arguing the court relied on unsupported factual findings, impermissibly used in-chambers statements, and erred in child-support calculation.
- Prior custody history: 2002 divorce awarded Hemmans sole physical custody with Blue’s visitation and $865 monthly support; 2010 order awarded Blue sole custody of the son and visitation to Hemmans limited by new arrangement; daughter elected Hemmans in Hawaii; no child support issued in 2010.
- Hemmans filed a pro se petition in 2013 seeking to restore sole custody of the son; May 2013 temporary order granted Hemmans visitation; July 2013 final hearing led to a custody/child-support award.
- Trial court made several explicit findings (e.g., denial of visitation in 2011 and 2012, school-related interference) that formed the basis for a material change in condition; court held ex parte statements and the in-camera interview supported the change and denied weight to the son’s affidavit.
- This Court vacated and remanded for corrected findings of material change and reconsideration of custody and child-support under corrected facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a material change in condition supported by the evidence | Blue contends findings were unsupported | Hemmans contends evidence shows material change | Yes; holdings vacated and remanded for corrected findings |
| Whether the custody decision relied on impermissible in-chambers statements and hearsay | Blue asserts statements from the son in chambers were improper and hearsay | Hemmans argues ex parte statements may be considered but not if not on record | Remanded; if corrected findings negate material change, custody decision must be reconsidered |
| Whether the child-support award was properly calculated | Blue argues guidelines should apply; evidence insufficient | Hemmans argues support based on 2002 decree was appropriate | Remanded for reconsideration consistent with corrected custody findings and guidelines |
| Whether the ex parte interview of the child affected the best-interest determination | Blue challenges reliance on in-camera interview | Hemmans emphasizes best-interest standard | Remanded; court must reconsider under corrected factual findings |
Key Cases Cited
- Mitcham v. Spry, 354 Ga. App. 386 (Ga. App. 2009) (change in custody requires material change; appellate review for abuse of discretion)
- Bull v. Bull, 243 Ga. 72 (Ga. 1979) (repeated denial of visitation can be material change)
- Tyree v. Jackson, 226 Ga. 690 (Ga. 1970) (visitation change as material change; standard)
- Osborne v. Osborne, 227 Ga. 235 (Ga. 1971) (single denial not enough for material change)
- Pickett, 288 Ga. 674 (Ga. 2011) (if correct facts would permit another judgment)
- In the Interest of Q. S., 310 Ga. App. 70 (Ga. App. 2011) (review of custody with corrected facts)
- Bridges v. Bridges, 197 Ga. App. 608 (Ga. App. 1990) (custody discretion with factual support)
- In the Interest of C. R. M., 179 Ga. App. 38 (Ga. App. 1986) (custody decision standards)
- Kohler v. Kromer, 234 Ga. 117 (Ga. 1975) (ex parte interview considerations)
- Peeples v. Newman, 209 Ga. 53 (Ga. 1952) (hearsay rule applicability)
- Allen v. Clerk, 273 Ga. App. 896 (Ga. App. 2005) (evidence rules in custody proceedings)
- Arp v. Hammonds, 200 Ga. App. 715 (Ga. App. 1991) (custody modification standards)
- Stowell v. Huguenard, 288 Ga. 628 (Ga. 2011) (child support guidelines considerations)
- Viskup v. Viskup, 291 Ga. 103 (Ga. 2012) (review of material change in custody)