Lowry v. Winenger
2017 WL 715956
Ga. Ct. App.2017Background
- Parents divorced in 2013 with roughly equal shared custody; mother was primary physical custodian and father retained final decision-making authority over the child’s religious upbringing.
- Mother remarried soon after the divorce, converted to the Mormon faith, and began taking the child to her new church without the father’s consent.
- Mother moved residences multiple times and ultimately relocated from Forsyth County to Hall County, increasing the father’s drive by ~50 minutes.
- Father testified the move interfered with his chosen extracurricular, religious, and educational arrangements and that the child showed apathy toward the new school.
- Guardian ad litem recommended modifying custody, concluding one parent should control religious upbringing; guardian and father testified the mother had misled them about the child’s residence and had at times undermined the father’s authority.
- Trial court found multiple adverse effects from these changes, held mother in contempt for violating the decree, awarded father primary physical custody, granted mother visitation, and ordered child support; mother appealed.
Issues
| Issue | Plaintiff's Argument (Lowry) | Defendant's Argument (Winenger) | Held |
|---|---|---|---|
| Whether evidence supported finding a material change in circumstances that adversely affected the child | Evidence was insufficient; changes were not materially adverse | Multiple changes (moves, religious exposure, activity conflicts, school apathy, deception) together materially harmed the child | Affirmed: trial court reasonably found cumulative material changes with adverse effects |
| Whether the trial court improperly relied on potential future harms in finding a material change | Court impermissibly considered speculative future negative impacts | Court may consider likely future effects and whether custodial parent will continue harmful conduct when deciding best interests | Affirmed: forward-looking consideration of likely future harms is permissible in best-interest analysis |
Key Cases Cited
- Horn v. Shepherd, 292 Ga. 14 (discussing standard of review and deference to trial court findings)
- Viskup v. Viskup, 291 Ga. 103 (explaining material change requirement for custody modification)
- Todd v. Casciano, 256 Ga. App. 631 (trial court determines best interest after material change found)
- Autrey v. Autrey, 288 Ga. 283 (appellate review limited; no abuse of discretion if any supporting evidence)
- Bodne v. Bodne, 277 Ga. 445 (trial court may consider myriad factors and future harm in custody decisions)
- Fox v. Korucu, 315 Ga. App. 851 (parental affidavit about child’s unhappiness can show adverse effect)
- Kuehn v. Key, 325 Ga. App. 512 (guardian ad litem recommendations are relevant to best-interest analysis)
- Scott v. Scott, 276 Ga. 372 (custody change is fact-specific inquiry)