Kuehn v. Key
325 Ga. App. 512
Ga. Ct. App.2014Background
- Parents divorced in 2007; mother awarded primary physical custody of two young sons; father awarded visitation and ordered to pay child support.
- In November 2011 father petitioned to modify custody (boys were 8 and 9), alleging the mother’s husband (stepfather) physically and mentally abused the children and the mother failed to intervene.
- Evidence at the modification hearing included the older child’s bruising after a paddling, grandmother testimony describing multiple harsh disciplinary incidents, the father’s testimony about a pattern of abuse, and a photograph of the bruise.
- Mother and stepfather admitted using corporal punishment (paddle, soap in child’s mouth, broken cutting board), but denied intent to harm and the stepfather testified he would stop corporal punishment.
- Trial court awarded primary physical custody to the father, modified child support, and ordered the mother to pay $4,000 of the father’s attorney fees.
- On appeal the Court of Appeals affirmed the custody change, vacated the attorney-fee award for lack of stated statutory basis/findings, and remanded for clarification; a recusal claim by mother was waived.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether trial court erred in changing primary physical custody | Change not authorized; no material change affecting children’s welfare; incidents were isolated and not severe; photo enhanced | There was a material change: ongoing pattern of physical abuse, bruising, fear and weight loss; GAL recommended father custody | Affirmed — any evidence supported trial court’s finding of material change and best interests under OCGA § 19-9-3 |
| Whether attorney-fee award to father was valid | Award lacked statutory basis and trial-court findings in order (mother contested award) | Father asserted fees authorized (relied on statute(s) tied to custody/support) | Vacated — record did not state which statutory basis supported the award; remanded for the trial court to identify the statute and make necessary findings |
| Whether trial judge should have recused | Mother asserted judge should have recused because paternal grandfather worked at the court (raised only in brief) | Issue not raised below; no substantive recusal argument in trial court | Waived/abandoned — appellate court declined to consider because mother did not timely raise or develop the argument |
Key Cases Cited
- Viskup v. Viskup, 291 Ga. 103 (Ga. 2012) (when multiple statutory bases for attorney-fee awards exist, trial court must state basis and supporting findings or remand)
- Scott v. Scott, 276 Ga. 372 (Ga. 2003) (change of custody requires material change in circumstances affecting child’s welfare)
- Horn v. Shepherd, 292 Ga. 14 (Ga. 2012) (trial judge has discretion in custody determinations; appellate review limited to abuse of discretion)
- Flowers v. Robinson, 157 Ga. App. 471 (Ga. Ct. App. 1981) (custody change warranted where step-parent’s corporal punishment left marks and child feared returning home)
- Smith v. Smith, 281 Ga. 380 (Ga. 2006) (in bench trials trial court is the factfinder and may resolve witness credibility)