Gordon v. Abrahams
330 Ga. App. 795
| Ga. Ct. App. | 2015Background
- Parents: Randall Gordon and Arlene Abrahams are unmarried parents of a then-10-year-old son; they entered a June 2011 settlement giving Abrahams primary physical custody and joint legal custody.
- Gordon petitioned (Aug. 2011) to modify custody seeking primary physical custody and a morality clause after learning Abrahams had a boyfriend with a prior 1998 California conviction for unlawful sexual intercourse with a minor.
- A reported “tickling” incident prompted Gordon to report suspected abuse; authorities (police/DFCS) investigated and found no evidence or charges; DFCS did not open a case.
- Abrahams’s boyfriend did not live with her but stayed overnight ~two weekends per month; Abrahams received National Guard income but was financially supported in part by the boyfriend.
- The GAL expressed concern about the relationship and financial instability but recommended Abrahams retain primary custody; trial court found no material change in circumstances and denied modification.
- Trial court later awarded Abrahams partial attorney fees under OCGA § 19-9-3(g) and ordered Gordon to pay two-thirds of GAL fees; Gordon appealed.
Issues
| Issue | Plaintiff's Argument (Gordon) | Defendant's Argument (Abrahams) | Held |
|---|---|---|---|
| Whether there was a material change in circumstances warranting custody modification | Abrahams’s relationship/cohabitation and Gordon’s improved home/financial stability are material changes harming child | No new adverse change: Gordon knew of relationship before settlement; boyfriend doesn’t live there; no evidence of harm | Trial court properly found no material change; modification denied |
| Whether denial of additional closing argument was error | Requested brief rebuttal/final closing and was denied | Court had allowed opening and one closing; denial within discretion | No abuse of discretion; not reversible error |
| Whether trial court could award attorney fees/GAL fees after initial order (term-of-court/finality) | Court lacked authority because fees were not decided within same term | Fees were reserved; final judgment not entered until fees resolved | Court had authority; resolution of reserved fee issues completed judgment |
| Whether fee awards (attorney and GAL) were improper or unsupported | Fees unnecessary/unproven; GAL fee lacked formal application | Fees authorized by statute; counsel testified as to hours/rates; GAL testified to fees; parties had opportunity to be heard | Fee awards affirmed: trial court did not abuse discretion in amount or apportionment |
Key Cases Cited
- Lynch v. Horton, 302 Ga. App. 597 (2010) (standard of review for custody modification)
- Viskup v. Viskup, 291 Ga. 103 (2012) (material change in condition standard for custody modification)
- Moses v. King, 281 Ga. App. 687 (2006) (cohabitation alone insufficient absent harm)
- Livesay v. Hilley, 190 Ga. App. 655 (1989) (same)
- Alexandrov v. Alexandrov, 289 Ga. 126 (2011) (trial court discretion to limit closing argument)
- Wilson v. Wilson, 277 Ga. 801 (2004) (reversible error if party completely denied closing argument)
- Miller v. Miller, 288 Ga. 274 (2010) (reserved issues affect finality of judgment)
- Moore v. Moore-McKinney, 297 Ga. App. 703 (2009) (broad trial court discretion to award fees under OCGA § 19-9-3(g))
- Salmon-Davis v. Davis, 286 Ga. 456 (2010) (appellate review of GAL fee apportionment discretion)