Warren v. Smith, 336 Ga. App. 342

Mark Warren and Melissa Smith were divorced and awarded joint legal and joint physical custody of their minor child.
Warren filed a post-divorce petition seeking modification of custody and child support; he does not appeal the child support ruling.
At the bench trial, Warren timely requested the trial court to make specific findings of fact and conclusions of law before the court ruled.
The trial court’s written order denied Warren’s request for a custody modification in a single conclusory sentence and did not include written findings; it claimed in a footnote that Warren had withdrawn his request by e-mail, but no such e-mail appears in the record and Warren denies withdrawing the request.
Warren appealed, arguing (1) the trial court erred by failing to find a material change in condition warranting a custody modification and (2) the court abused its discretion by refusing to enter requested findings of fact and conclusions of law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by failing to find a material change in condition to modify custody	Warren argued there were sufficient changed conditions to warrant awarding him primary physical custody	Smith argued the court correctly found no sufficient grounds to change custody	Court vacated the denial of modification and remanded because required findings were not entered, preventing adequate review of whether a material change exists
Whether trial court was required to enter specific findings of fact and conclusions of law upon timely request	Warren contended he timely requested such findings under OCGA § 9-11-52 and §19-9-3, so the court was obligated to comply	Smith relied on the court’s footnote claiming Warren withdrew the request (no record support)	Court held that when a party timely requests findings in a nonjury custody matter, the court must make them; absence of findings compelled vacatur and remand

Lynch v. Horton, 302 Ga. App. 597 (discussion of standard for change of custody and child’s best interest)
Daniel v. Daniel, 250 Ga. App. 482 (once custody is permanent, modification requires material change affecting welfare)
Lewis v. State, 283 Ga. 191 (construction of "shall" as generally mandatory)
S. Crescent Newspapers L. P. v. Dorsey, 269 Ga. 41 ("shall" construed as mandatory)
State v. Henderson, 263 Ga. 508 ("shall" generally mandatory directive)
Bonds v. Bonds, 241 Ga. App. 378 (OCGA §9-11-52 requires findings upon request)
Doe v. Chambers, 188 Ga. App. 879 (OCGA §9-11-52 requires separate specific findings upon timely request)
Grantham v. Grantham, 269 Ga. 413 (findings enable appellate review in custody cases)
Weickert v. Weickert, 268 Ga. App. 624 (no findings required where no timely request made)