350 Ga. App. 348
Ga. Ct. App.2019Background
- Alexa and Bruce Burnham divorced in 2016; joint legal custody was retained with Alexa having physical custody of two children (b. 2007 and 2010) and Bruce ordered to pay child support.
- The separation agreement required parents to live within 120 miles of the Palmetto home unless relocation was employment-related; parties initially co-parented amicably.
- Alexa planned a move to Cobb County in 2018 for work—undisputedly within 120 miles—while Bruce purchased a home to keep the children in their school district.
- Bruce filed to modify custody and child support alleging the move was a material change in circumstances; Alexa filed counterclaims for contempt and modification of visitation.
- At a consolidated hearing the trial court modified custody, awarding physical custody to Bruce and ordering Alexa to pay child support, but did not expressly find a material change in circumstances before applying a best-interests analysis.
- Alexa appealed, arguing the trial court erred by failing to make the required threshold finding that circumstances materially changed before assessing the children’s best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by modifying custody without first finding a material change in circumstances | Alexa: Trial court failed to make threshold finding required when non-custodial parent seeks modification; separation agreement limits qualifying relocations to >120 miles | Bruce: Alexa waived the argument by not raising it below and implicitly conceding changed circumstances | Court: Trial court erred; Alexa did not waive the issue and the court must vacate and remand for findings on material change before best-interest analysis |
Key Cases Cited
- Lowry v. Winenger, 340 Ga. App. 382 (appellate review will affirm if any evidence supports trial court)
- Gordy v. Gordy, 246 Ga. App. 802 (trial judge’s factfinding in custody matters given deference)
- Viskup v. Viskup, 291 Ga. 103 (trial court must find material change in circumstances before modifying custody)
- Scott v. Scott, 276 Ga. 372 (whether circumstances warrant custody change is a fact question)
- Weickert v. Weickert, 268 Ga. App. 624 (threshold finding of material change required before best-interest inquiry)
- Johnson v. Hubert, 175 Ga. App. 169 (failure to make threshold finding requires remand)
- Morgan v. Fordham, 328 Ga. App. 227 (same: remand where trial court focused solely on best-interest factors)