324 Ga. App. 785
Ga. Ct. App.2013Background
- Mother and father divorced in 2008 with joint legal custody and mother having physical custody of C.J.W.; father granted visitation in Atlanta on a regular monthly schedule.
- October 2008: mother held in contempt for denying father visitation; ordered to pay father's attorney fees.
- January 2010 petition for modification; June 2010: contempt finding for denial of visitation; temporary sole physical custody to father, later rescinded to reinstate custody in mother.
- November 2010 final order: mother retains custody; father’s visitation in Colorado supervised; order not appealed.
- August 2012: father files contempt; December 2012: trial court finds mother in contempt for denying visitation in Aug–Nov 2012 and for blocking telephone visitation; modifies plan to remove supervision and orders fees and travel costs; schedules compliance hearing for Jan 31, 2013.
- Post-judgment, a compliance hearing occurred and physical custody was changed to the father; mother appeals the December 4, 2012 contempt order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether custody change post-hearing was proper | Weeks argues the change after compliance was outside appealable scope. | Weeks contends trial court could modify visitation and adjust custody on contempt findings. | Change of custody pending appeal; affirmed in part, reversed for fees; remanded for fee evidentiary hearing. |
| Whether visitation modification from supervised to unsupervised was authorized and proper | Weeks asserts lack of notice and improper contempt-based modification. | Weeks concedes OCGA § 19-9-3(b) allows visitation modification during contempt proceedings; sufficient evidence supported change. | OCGA § 19-9-3(b) permits modification; evidence supported change to unsupervised visitation. |
| Whether attorney fees awarded were properly supported | Weeks contends fee award lacked statutory basis and reasonableness evidence. | Weeks argues court may award fees based on financial circumstances and value of services; the record lacked specifics. | Vacate the fee award; remand for evidentiary hearing to determine amount of fees. |
| Whether denial of supersedeas was properly disposed of as moot | Weeks sought supersedeas under OCGA § 5-6-13(a). | Court denied; moot since appeal focused on contempt finding, not remedy. | Moot since appeal challenged contempt, not the supersedeas denial. |
Key Cases Cited
- Hunter v. Hunter, 289 Ga. 9 (Ga. 2011) (trial court has broad discretion in contempt; reversal only for gross abuse)
- Cross v. Ivester, 315 Ga. App. 760 (Ga. App. 2012) (OCGA § 19-9-3(b) permits visitation modification during contempt)
- Horn v. Shepard, 292 Ga. 14 (Ga. 2012) (visitation modification during contempt proceedings authorized)
- Gildar v. Gildar, 309 Ga. App. 730 (Ga. App. 2011) (court may adjust visitation conditions based on evidence)
- In re Serpentfoot, 285 Ga. App. 325 (Ga. App. 2007) (fee award standards; need for basis and reasonableness in contempt)
- Johnson v. Johnson, 284 Ga. 366 (Ga. 2008) (fee determination guided by financial circumstances and value of services)
- Bloomfield v. Bloomfield, 282 Ga. 108 (Ga. 2007) (appeals timing in custody context)
- Long v. Long, 303 Ga. App. 215 (Ga. App. 2010) (relates to appellate considerations in custody cases)
- Scarbrough Group v. Worley, 290 Ga. 234 (Ga. 2011) (mootness standard and abstract questions; when case is moot)