Odum v. Russell
342 Ga. App. 390
| Ga. Ct. App. | 2017Background
- Steven Odum and Peggy Russell divorced in 2008; the decree awarded joint legal and physical custody with specified final-decision assignments (education to Odum, health to Russell) and alternating week physical custody.
- In 2014 Odum filed to modify custody and child support and for contempt, alleging Russell violated the decree and acted against the child’s best interests; Russell counterclaimed seeking altered decision-making, summer custody changes, increased support, and attorney fees.
- The trial court (Jan. 13, 2016) found no material change in circumstances warranting a custody change, denied Odum’s custody modification, but nonetheless adjusted parenting provisions (shifted education decision-making to Russell, extracurricular authority to Odum, and removed one week of Odum’s summer custody) and increased child support based on Odum’s income.
- Russell sought and obtained attorney fees and litigation expenses; the court awarded $1,000 under OCGA § 19-6-2 and $44,770.37 under OCGA § 19-9-3; the court also dismissed Odum’s initial notice of appeal (later deemed moot by the Court of Appeals).
- Odum appealed the custody modifications, the dismissal of his notice of appeal, and the fee awards; the Court of Appeals reversed the custody modifications and affirmed the § 19-6-2 fee award, vacating and remanding the § 19-9-3 award for further proceedings.
Issues
| Issue | Odum's Argument | Russell's Argument | Held |
|---|---|---|---|
| Whether the trial court could modify custody provisions after finding no material change in circumstances | Trial court lacked authority to change custody or decision-making absent a material change | Adjustments were in child’s best interest and within court’s discretion | Reversed: court may not modify custody/decision-making absent material change; modifications invalid |
| Removal of an extra week of father’s summer custody (visitation vs. custody) | Removal was an improper modification of joint physical custody without material change | Characterized as permissible visitation adjustment | Reversed: removing week was a modification of joint physical custody and unauthorized without material change |
| Award of attorney fees under OCGA § 19-6-2 for defense of contempt and child-support modification | Fees under § 19-6-2 improper for child-support modification alone | Fees permissible because the action included contempt arising from the divorce decree and child-support issues | Affirmed: $1,000 award not an abuse of discretion under § 19-6-2 |
| Award of attorney fees and litigation expenses under OCGA § 19-9-3 for defense of custody modification | Fees under § 19-9-3 improper or overstated, particularly because custody modifications were erroneous | Fees requested were reasonable and recoverable under § 19-9-3 | Vacated and remanded: unclear how erroneous custody modifications affected the § 19-9-3 award; trial court to reconsider consistent with opinion |
| Dismissal of Odum’s initial notice of appeal | Dismissal prejudiced Odum and imposed fees for responding to appeal | Order was proper because fees motion pending; dismissal appropriate | Moot: Odum later obtained appeal and merits review; issue resolved as academic |
Key Cases Cited
- Viskup v. Viskup, 291 Ga. 103 (setting material-change requirement for custody modification)
- Autrey v. Autrey, 288 Ga. 283 (appellate deference to trial court custody findings)
- Daniel v. Daniel, 250 Ga. App. 482 (material-change rule governs custody modifications)
- Collins v. Billow, 277 Ga. 604 (trial court cannot modify decree in contempt proceeding absent authority)
- Weickert v. Weickert, 268 Ga. App. 624 (change of custody requires new and material change affecting the child)
- McDonogh v. O’Connor, 260 Ga. 849 (§ 19-6-2 may authorize fees where contempt and modification actions are joined)
- Cothran v. Mehosky, 286 Ga. App. 640 (limits on § 19-6-2 where proceedings do not arise from original divorce)
- Hoard v. Beveridge, 298 Ga. 728 (abuse-of-discretion standard for fee awards)
- Stewart v. Stewart, 245 Ga. App. 20 (trial court may modify visitation during contempt but not custody absent material change)
- Collins v. Lombard Corp., 270 Ga. 120 (mootness principles)
- Woodruff v. Choate, 334 Ga. App. 574 (direct appealability of custody orders)
- Doherty v. Brown, 339 Ga. App. 567 (appellate court will not search record for unsupported assertions)
- Richardson v. Phillips, 302 Ga. App. 305 (mootness when dispute resolved)