MARKS v. SOLES Et Al.
339 Ga. App. 380
| Ga. Ct. App. | 2016Background
- In March 2013 Bulloch County law enforcement removed three minor children from mother Audrea Marks after officers found the home in extremely unsanitary condition; fathers Jason Soles (children 1 & 2) and Brad Lane (child 3) obtained temporary custody.
- Marks had prior divorce-based child support from Soles and had filed a garnishment against him for arrears in 2012; Soles filed a traverse to that garnishment.
- Temporary orders (2013) placed primary physical custody of children 1 & 2 with Soles and child 3 with Lane; child support obligations were suspended and garnishment proceeds held in registry.
- After multi-day hearings in 2014 the trial court found Marks unfit for custody, awarded joint legal custody of child 3 to Marks, Lane, and the child’s paternal grandparents and awarded primary physical custody of child 3 to the grandparents; it also continued joint custody for children 1 & 2 with Soles as primary physical custodian.
- The trial court ordered child support from Marks to the fathers retroactive to March 1, 2013 (later reduced and partially credited), and incorporated a parenting plan that on its face related only to child 3 but was applied to all three children.
- On appeal Marks challenged (inter alia) the award of joint custody to the grandparents, the retroactive child-support order, and the trial court’s incorporation of a single parenting plan for all children.
Issues
| Issue | Marks’ Argument | Fathers/Grandparents’ Argument | Held |
|---|---|---|---|
| Whether trial court improperly relied on temporary-hearing evidence at final hearing without notice | Trial court relied on temporary-hearing evidence without giving proper notice | Evidence at the final hearing, including testimony and exhibits, supported the findings; no objection was made | No abuse of discretion; final hearing included extensive evidence and the court gave notice; reliance on temp hearing was not shown |
| Whether paternal grandparents may be awarded joint legal or joint physical custody with a parent when at least one parent is suitable | Grandparents argued their custody served child’s stability/best interest | Fathers/grandparents argued grandparents’ custody was in child’s best interest | Reversed: grandparents cannot be awarded joint custody with a parent unless both parents are unsuitable; award to grandparents exceeded statutory authority |
| Whether trial court properly applied a parenting plan that named only child 3 to all three children | Marks argued the court improperly adopted a plan drafted only for child 3 and applied it to children 1 & 2 | Court treated the parenting plan as appropriate for all children | Reversed/vacated as to incorporation; remanded to require separate, discrete parenting plans (one for child 3; one for children 1 & 2) |
| Whether court properly imposed retroactive child support on Marks to March 2013 and applied Child Support Guidelines | Marks contested retroactive imposition and failure to use Guidelines for children 1 & 2 | Court imposed retroactive payments and used worksheet only for child 3 | Retroactive child-support order reversed (support modifications operate prospectively only); court also erred by failing to apply mandatory Child Support Guidelines for children 1 & 2; remand for recalculation |
Key Cases Cited
- Viskup v. Viskup, 291 Ga. 103 (trial court must exercise discretion to decide child's best interest in custody modification)
- Vines v. Vines, 292 Ga. 550 (appellate review: custody change upheld unless clear abuse of discretion)
- Pace v. Pace, 287 Ga. 899 (trial court may not rely on temporary-hearing evidence in permanent custody ruling without express notice)
- Stone v. Stone, 297 Ga. 451 (only parents — not grandparents — may share joint legal custody when a parent is suitable)
- Jarrett v. Jarrett, 259 Ga. 560 (child support modification cannot operate retroactively; prior judgment stands until properly modified)
- Evans v. Evans, 285 Ga. 319 (Child Support Guidelines are mandatory and must be considered when setting support)
- Wright v. Burch, 331 Ga. App. 839 (modification orders operate prospectively; courts cannot retroactively alter past-due payments)
- Rose v. Thorpe, 240 Ga. App. 834 (trial court may not use modification proceeding to recoup or increase past payments retroactively)