Driver v. Sene
327 Ga. App. 275
| Ga. Ct. App. | 2014Background
- Charles R. Driver (father) petitioned to modify custody, support, and visitation of three children; mother Holly E. Sene had primary physical custody under a 2009 decree.
- Father initially obtained temporary custody ex parte alleging abuse/neglect; after hearings a guardian ad litem (GAL) was appointed and the two younger boys were returned to mother’s temporary custody.
- Father sought permanent modification; the oldest child (17) elected to live with father and the trial court changed custody for that child; the two younger boys (15 and 12) remained with mother.
- The 15-year-old (M.D.) submitted affidavits electing to live with father; the GAL and trial court concluded mother’s custody was in M.D.’s best interests given his complex developmental/psychiatric needs and evidence the children’s statements may have been influenced.
- Trial court awarded mother $5,000 in attorney fees; father appealed custody rulings and the fee award.
- Court of Appeals affirmed the custody decisions (no abuse of discretion) but vacated the attorney-fee award and remanded for findings and an evidentiary hearing on fee amount and statutory basis.
Issues
| Issue | Plaintiff's Argument (Driver) | Defendant's Argument (Sene) | Held |
|---|---|---|---|
| Whether trial court erred in refusing to award custody to father for 15‑year‑old based on child’s election | M.D.’s election (age ≥14) is presumptive and should have resulted in custody to father unless mother proved unfitness | Election is a factor but court may override if award would not be in child’s best interest; GAL recommended mother | Court: No abuse of discretion; election is presumptive under OCGA §19‑9‑3(a)(5) but can be overridden for child’s best interest; father didn’t request factual findings so none required |
| Whether trial court misapplied best‑interest standard | Father argued evidence showed he was better custodian under OCGA §19‑9‑3(a)(3) factors | Mother and GAL presented evidence supporting mother’s greater involvement in medical/educational needs and concerns about sincerity of election | Court: Best‑interest determination supported by record; no abuse of discretion |
| Whether the child’s election alone constituted a material change warranting modification | Father: M.D.’s election is per statute a material change mandating modification | Mother: Election is one statutory ground but does not mandate change; trial court must assess best interest | Court: Election may constitute material change to warrant consideration but does not mandate custody change; no abuse of discretion |
| Whether trial court properly awarded $5,000 in attorney fees to mother | Father: Fee award unsupported by evidence and court failed to state statutory basis | Mother: Sought fees under either OCGA §9‑15‑14(b) (frivolous claims) or OCGA §19‑9‑3(g) (custody litigation fees) | Court: Fee award vacated and remanded — trial court failed to state statutory basis and fee amount lacked billing proof; remand for findings and evidentiary hearing |
Key Cases Cited
- Gibson v. Pierce, 176 Ga. App. 287 (review evidence in light most favorable to trial court)
- Viskup v. Viskup, 291 Ga. 103 (modification requires material change and best‑interest analysis)
- Scott v. Scott, 276 Ga. 372 (initial custody may change as children mature)
- Murillo v. Murillo, 300 Ga. App. 61 (child election presumptive under amended statute)
- Weaver v. Jones, 260 Ga. 493 (prior law: child selection controlling absent finding of unfitness)
- Harbin v. Harbin, 238 Ga. 109 (prior law recognizing controlling effect of a child’s election)
- Lurry v. McCants, 302 Ga. App. 184 (insufficient fee proof requires reversal/remand for evidentiary hearing)