301 Ga. 218
Ga.2017Background
- Parties divorced in June 2015; final decree awarded Husband sole legal and physical custody and gave Wife supervised visitation twice monthly at a specified church.
- Procedural history: Wife filed for divorce and emergency custody Nov 2013; temporary orders issued (initially Wife temporary custody, later joint week-to-week custody), bench trial held, final judgment June 9, 2015; motion for new trial denied.
- Trial court found Wife made false or exaggerated accusations of abuse, interfered with Husband’s visitation, withheld the child, and otherwise prolonged litigation.
- Final decree omitted a statutory “permanent parenting plan” required by OCGA § 19-9-1 and awarded Husband $12,000 in attorney fees without written findings specifying the statutory basis or consideration of both parties’ finances.
- Wife appealed, arguing (1) visitation effectively denied by leaving scheduling to a third party; (2) trial court relied on temporary-hearing evidence without notice; (3) failure to include a permanent parenting plan; and (4) attorney fees were awarded without proper findings.
Issues
| Issue | Plaintiff's Argument (Wife) | Defendant's Argument (Husband) | Held |
|---|---|---|---|
| Whether visitation was effectively denied by leaving scheduling to a third party | Court left days/times unspecified and delegated scheduling to church, effectively denying meaningful visitation | Order mandated two supervised visits/month at a named church; parties to cooperate with church to set days/times | No abuse of discretion; specifying location and frequency and requiring parties’ cooperation did not amount to an effective denial |
| Whether trial court improperly relied on evidence from temporary hearings without notice | Final custody relied on evidence from temporary hearings not reintroduced at final hearing | Court reexamined and admitted much of the same evidence at final hearing; record contains final-hearing testimony and exhibits | No error; record shows evidence was presented at final hearing and used in custody determination |
| Whether failure to incorporate a permanent parenting plan requires vacatur | Final decree lacked a parenting plan as mandated by OCGA § 19-9-1 | Trial court claimed custody/visitation provisions functioned as a parenting plan and pointed to Wife’s noncooperation | Vacated in part and remanded: final judgment must incorporate a permanent parenting plan complying with statutory requirements |
| Whether attorney fees award was legally supported and sufficiently found | Fee award lacks stated statutory basis and findings; court did not consider both parties’ finances | Court indicated award under OCGA § 19-6-2 but did not make explicit factual findings on finances | Fee award vacated; on remand court must state statutory basis and make required factual findings (including consideration of financial circumstances) |
Key Cases Cited
- Bishop v. Baumgartner, 292 Ga. 460 (2013) (deference to trial court custody/visitation determinations absent clear abuse of discretion)
- Shook v. Shook, 242 Ga. 55 (1978) (ordering merely “reasonable” visitation can produce effective denial requiring specification of dates/times)
- Chandler v. Chandler, 261 Ga. 598 (1991) (trial court abused discretion by conditioning visitation solely on parties’ written agreement, effectively denying visitation)
- Moon v. Moon, 277 Ga. 375 (2003) (trial court may require supervised visitation where justified)
- McFarlane v. McFarlane, 298 Ga. 361 (2016) (detailed visitation schedule does not satisfy statutory requirement to incorporate a permanent parenting plan)
- O’Keefe v. O’Keefe, 285 Ga. 805 (2009) (distinguishes purposes of attorney-fee statutes § 19-6-2 and § 9-15-14 and explains standards for fee awards)
- Thrasher-Starobin v. Starobin, 299 Ga. 12 (2016) (remand required where trial court failed to make findings sufficient to support attorney-fee award)
- Leggette v. Leggette, 284 Ga. 432 (2008) (remand required where trial court did not make required findings for fee awards)