JOEL A. DALLOW v. MARY ELLEN KELLY
S16A1210
Supreme Court of Georgia
DECIDED SEPTEMBER 12, 2016
RECONSIDERATION DENIED OCTOBER 17, 2016
299 Ga. 762 | 791 SE2d 20
NAHMIAS, Justice.
Webb also claims that medical records made around the time of the execution of the will show that Schmidt had memory problems and was not oriented to date, day of the week, place, and person. While some notes in the medical records certainly suggest memory problems and disorientation, the records as a whole have notations that reflect variable states of mind around the time that the will was executed, and we note that the records generally reflect that Schmidt‘s state of mind improved as he was hospitalized and close in time to the execution of the will. Even if there was some evidence that Schmidt was not lucid at times, the record does not demand a finding that he was not lucid when he executed the will. After reviewing all of the evidence — including not only the medical records that show continuing changes in Schmidt‘s condition, but also the testimony of his lawyer and the self-proving affidavits executed by the subscribing witnesses — we cannot say that the record on appeal demonstrates a lack of testamentary capacity as a matter of law. See Curry v. Sutherland, 279 Ga. 489, 489-490 (1) (614 SE2d 756) (2005).
Judgment affirmed. All the Justices concur.
Chuck Pardue & Associates, Chuck R. Pardue, Shellana J. Welch, for appellant.
Troy A. Lanier; J. Larry Broyles, for appellees.
S16A1210. DALLOW v. DALLOW. (791 SE2d 20)
This appeal arises from the appellee mother‘s complaint for modification of the divorce parenting plan for her now-17-year-old child. The appellant father contends that the trial court erred in denying his motion to dismiss the modification action, impermissibly modified his visitation rights to require him to arrange visits with his daughter at times that are mutually agreeable, and improperly awarded the mother $46,593.05 in attorney fees and costs. Aside from what we conclude is a scrivener‘s mistake in the order awarding attorney fees, we see no error. Accordingly, we affirm.
1. The pertinent facts and convoluted procedural history of this case and the related contempt proceedings will take a number of pages to lay out.
(a) Joel A. Dallow (Father) and Mary Ellen Kelly (Mother) married in August 1994 and had three children together: Cecily, Eric, and the child at issue in this case, J. D. Father is a musician with the Atlanta Symphony Orchestra, and Mother is an emergency room nurse at Northside Hospital. In January 2014, Father filed a complaint for divorce, and Mother answered and counterclaimed for divorce. The parties entered into a settlement agreement and prepared an agreed parenting plan, proposed child support worksheet, and consent child support addendum. On April 23, 2014, the trial court entered a final judgment and decree of divorce incorporating the parties’ agreements and proposals. When the decree was entered, Cecily was an adult and in college; Eric was 17 and about to graduate from high school and go away to college; and J. D. was 14. The parties were awarded joint legal custody of Eric and J. D., with Mother given final decision-making authority regarding their non-emergency healthcare, extracurricular activities, education, and religious upbringing.
Mother was awarded the marital residence, which is within walking distance of J. D.‘s high school. The agreed parenting plan incorporated into the divorce decree designated Mother as Eric and J. D.‘s primary physical custodian. As for visitation, the plan said:
Due to the fact that Eric will graduate high school in May 2014, and that [J. D.] is over the age of 14, [Father] will have parenting time at any time mutually agreeable to [Father] and each minor child. To the extent that [Father] and [J. D.] cannot agree to more time, this Parenting Plan is the minimum time [Father] will have with [her]. [Father] shall have the minimum parenting time each week with [J. D.]: if he is not working on Sunday, his parenting time starts at 12:00 noon on Sunday, and if he is working, his parenting time starts at 6:00 p.m. on Sunday continuing until Wednesday morning to drop [J. D.] off at school, or at 9:00 a.m. when school is not in session.
There was also a holiday and school break visitation schedule.
The parenting plan acknowledged the logistical challenges inherent in raising busy teenagers who have extensive time commitments in addition to school. The parties
The parties agree that strict compliance with time and schedules set forth herein will not always be possible and agree to cooperate with each other in connection therewith. Both parties agree to exercise the parenting time/visitation schedule as set forth herein so as not to unreasonably interfere with [J. D.‘s] schooling and extracurricular activities. . . .
The parties did not check the option to require both parents to “consult with each other prior to scheduling any activity that will impact time the other parent spends with the child(ren).”
(b) In May 2014, Father bought a house three miles from the marital residence. In June, J. D. threw an unauthorized party at Father‘s new house while he was out of town, which resulted in what Father characterized as some minimal property damage. Two watches with sentimental value to Father also went missing, along with an iPhone charger, several pieces of a ratchet set, and two vegetarian pizzas. J. D.‘s conduct damaged her parents’ trust in her. Mother grounded J. D. for the rest of the summer. Father was very upset. He demanded that she give him the names of the other children at the party so that he could call their parents, and when J. D. resisted, he threatened to call the police on her. This threat greatly disturbed her. Father hounded J. D. to help him find out who took the missing items; after a few days, the level and constancy of Father‘s anger and yelling at J. D. made her scared to be alone with him, so on Father‘s Day she visited him with her older brother Eric. J. D. eventually gave Father the other children‘s names, and he contacted their parents. At the end of the summer, Eric moved to North Carolina to start college.
During the summer of 2014, the amount of time that Father requested for visitation with J. D. was far less than the minimum parenting time specified in the divorce decree. Nevertheless, toward the end of the summer, Father reviewed the parenting plan and began threatening J. D. that he would take her and Mother to court if J. D. did not abide by the minimum visitation schedule. The atmosphere of mistrust and resentment created by the party and its aftermath, and Father‘s demanding approach in asserting his visitation rights, made J. D. increasingly reluctant to stay with him. J. D. proposed to Father that she have visitation with him every other weekend, which would keep her from having to divide her time between two households during the school week, but Father rejected her proposal out of hand.
(c) On August 11, 2014, J. D.‘s first day of tenth grade, Father filed, in the divorce action, a pro se petition for contempt against Mother. He alleged, among other things, that Mother had denied him visitation with J. D. by “allow[ing] the minor child to be unavailable for pick up at the designated times in the Parenting Plan,” by permitting J. D. to make plans during his visitation time, and by failing to encourage J. D. to stay in touch with him and to keep him informed about what was going on in her life. Father requested among other things that Mother be jailed, that he be given “make up” visitation time with J. D., and that the court order that J. D. undergo therapy with a clinical social worker or psychologist chosen by Father.
In September 2014, the Atlanta Symphony Orchestra locked out its musicians in a labor dispute that lasted for the next two months, and between the end of September and the middle of November, Father missed six weeks of visitation with J. D. Father‘s explanation was that he could not exercise any visitation because he was working various jobs out-of-state.
Meanwhile, on October 3, 2014, Mother filed a complaint for modification of Father‘s visitation rights as a civil action separate from the divorce action in which Father had filed his contempt petition. Supported by an affidavit by J. D. expressing her preference not to be forced to visit Father, the modification
On November 4, 2014, Father filed a motion to dismiss Mother‘s modification complaint, which he amended five times over the next seven months. On November 18, Mother, acting through counsel, accepted service of Father‘s contempt petition, and on December 1, she filed her answer, denying that she had wilfully violated the divorce decree. Mother alleged that she had been and would continue on a daily basis to actively encourage J. D. to see Father and to keep him informed about what was happening in her life, adding that she had urged J. D. to work with Father to devise a visitation schedule that worked for both of them.
On December 3, 2014, Father filed a pro se amendment to his contempt petition and a motion to modify the parenting plan to increase his minimum visitation time with J. D. Father alleged that Mother was continuing to interfere with his visitation time and blamed Mother for creating “a sense of estrangement and alienation” between him and J. D. Father asked the court to modify the parenting plan to award him, as “make up” visitation with J. D., “all holidays and school breaks in 2015, with the exception of Mother‘s Day and Christmas Day until 1:00 p.m.,” and double summer vacation time of four weeks. Father also asked the court to modify the “Other Parenting Time Provisions/Agreements” section
to require [Mother] to offer [Father] the right of first refusal of supervision, transportation, or other care and custody of [J. D.] prior to making any arrangements for the child to be in anyone else‘s care, custody or supervision, regardless of the amount of time; and . . . by checking the box that requires parents to confer with each other prior to scheduling any activity that will impact the time the other parent has with the child, including a specific direction to [Mother] that she is not permitted to schedule anything for the minor child, or allow the minor child to schedule anything[,] that conflicts with [Father‘s] court-ordered minimum visitation and parenting time.
In early January 2015, during Father‘s first visitation with J. D. after the holiday school break, he sat her down and read her the 12-page parenting plan verbatim, which made her cry. J. D. was so upset that she contacted her brother Eric and asked him to come pick her up. According to Father, J. D.‘s attitude toward him changed after this incident and continually deteriorated after that.
On January 27, 2015, the trial court held a hearing on Father‘s amended contempt petition, at which he was represented by a Virginia attorney appearing pro hac vice. On February 12, the court entered a final order finding Mother in contempt in several respects related to the property division provisions of the divorce decree. The court expressly rejected, however, Father‘s assertion that Mother was the source of the disruption of his visitation with J. D. and the deterioration of their father-daughter relationship, and therefore declined to hold Mother in contempt on this issue. The court did grant Father‘s request to order Mother to refrain from scheduling any activity for J. D. during Father‘s visitation time and directed Mother to admonish J. D. that any activity scheduled during that time must be cleared with Father.
(d) On February 16, 2015, J. D. informed Father that she wanted to stay at home that night and told him by text message not to pick her up after dance class. Father responded that he was going to pick J. D. up despite her wishes, so she asked Mother to pick her up early from dance class, which Mother then did. When Father learned that J. D. had left early, he called the police and drove to Mother‘s house, where he showed the police the parenting plan giving him visitation with J. D. that evening and then waited in his car while the police went inside and
Throughout the school year, Father insisted that J. D. ride the bus to school some mornings during his visitation time even though he was home and available to drive her. On those mornings, he would not let J. D. ride to school with a friend, and although he sometimes allowed Mother to pick J. D. up from his house and drive her to school, at other times he would refuse. Father‘s initial explanation for his periodic refusal to take J. D. to school was that he could not spare the 30 to 60 minutes it allegedly took him to do so. However, he also said, “if [J. D.] wants me to go out of my way, she needs to start treating me with respect.” Father later claimed that having to ride the bus “builds character.” It infuriated J. D. to be forced to ride the bus to school when Father was available but unwilling to take her and unwilling to allow her to get a ride to school, but despite the friction that this issue caused in their relationship, Father would not relent.
On the morning of March 17, 2015, J. D. had arranged with Mother to pick her up at Father‘s house and take her to school, apparently with Father‘s consent, but J. D. overslept and Mother had to go on to work. When Father noticed that J. D. was not up, he woke her and told her that she needed to get ready for the bus. J. D. did not have clean clothes to wear to school and was upset that Mother was already at work and could not pick her up and take her home to change clothes before school. Father was unmoved and insisted that J. D. take the bus to school in her dirty clothes, because he had “told [J. D.] repeatedly, pack what you need for the half week so that you have what you need for school.”
J. D., crying hysterically, called a friend whose mother then picked her up from Father‘s house, took her home so that she could put on clean clothes, and then drove her to school. When Father discovered that J. D. did not take the bus, he assumed that she had caught a ride to school, but he nevertheless contacted the police and had them call J. D., who was at home changing for school. Father also contacted the woman who picked J. D. up and threatened legal action against her if she ever gave J. D. a ride to school from his house again. J. D. was extremely upset that Father had called the police on her again.
On April 27, 2015, Father filed another contempt petition, alleging among other things that Mother had interfered with his visitation in various ways. On May 19, Father filed another contempt petition, this time alleging that Mother failed to foster his father-daughter relationship with J. D., failed to confer with him when choosing a therapist for J. D., told J. D. that Father was requiring her to go to therapy, and refused to consent to therapy for J. D. with a parental alienation specialist chosen by Father. On June 2, Father filed yet another contempt petition, alleging that Mother instructed J. D. to forward to her a visitation-related e-mail from Father and failed to turn over to the trial court all communications between Mother and J. D. as he requested. On June 3, Mother responded to Father‘s contempt petitions, denying his allegations and asserting that he was being uncooperative and unreasonable.
(e) On June 4, 2015, the trial court held a lengthy hearing on “everything” pending in both the modification of visitation and divorce contempt cases. Father, Mother, one of Mother‘s neighbors, and the woman who gave J. D. a ride to school on March 17 testified, and the parties introduced voluminous written communications among Father, Mother, and J. D. It was undisputed that J. D. hated the forced visitation schedule with Father and that she actively resisted going to see him. The evidence showed that when J. D. stayed at Father‘s house, she locked herself in her bedroom for the duration of the forced visits; she refused to eat his food; and when Father put up pictures in her bedroom of them together when she was younger, she took the pictures down, explaining to Father that she did not want to look at them. Father denied any responsibility for the difficulties in his relationship with J. D. and her desire not to have forced visitation with him, attributing the problems entirely to Mother‘s alleged
In the modification order, the trial court found that J. D. was living “a life full of stress, anxiety and turmoil” as a result of the inconvenient visitation arrangement established by the divorce decree. The court noted its opportunity to observe Father‘s demeanor and found that he was “convinced that he could have a ‘father-daughter relationship’ by force” and was “out of touch with the depth and severity of his daughter‘s anger and resentment.” In the attorney fees order, the court rejected Father‘s claim that Mother was “systematically alienating” J. D. from him, finding instead that “Father‘s behavior was a huge contributor” to the breakdown of his relationship with J. D., that he had “wielded his ‘I‘m the boss of you’ father card over the child like a sledge hammer in spite of his fragile relationship with her,” and that “throughout Father‘s testimony, he was clear that his support, love, attention, guidance and rearing of J. D. and her siblings would be on his terms and that would be revoked if his children did not behave exactly as he demands.” The court also found that, despite his recognition that his relationships with all three of his children were strained, Father “nonetheless still travel[ed] the path to reconciliation via threats, numerous court filings, and repeated police involvement.”
The court noted that it had “seriously considered” ordering reunification therapy for Father and J. D. until “it became obvious” that such a requirement “would likely be a waste of time and money and a source of more frustration” given the level of J. D.‘s anger toward Father. The court therefore granted Mother‘s request to modify the parenting plan to require J. D. to visit Father only at times they mutually agree on, thereby eliminating the visitation by “force and intimidation” that was driving Father and J. D. further and further apart.
On the issue of attorney fees, the trial court found that Father “turned a simple litigation into a complex one” with numerous court filings and abusive discovery requests and by threatening Mother with criminal prosecution for misdemeanor interference with child custody and arrest from her job in connection with a settlement proposal that would have required her to pay his attorney $55,000. The court ordered Father to pay Mother $46,593.05 in fees, in monthly increments of $5,000.
On July 28, 2015, Father filed a timely notice of appeal to this Court, specifying that he was challenging the orders granting Mother‘s modification complaint, awarding Mother attorney fees, and denying his motion to dismiss.2
2. Before we consider Father‘s enumerations of error, we address this Court‘s jurisdiction to decide this appeal. See Lay v. State, 289 Ga. 210, 211 (710 SE2d 141) (2011) (” ‘[I]t is the duty of this Court to
However, an award of attorney fees under
We note, however, that during this year‘s legislative session, the General Assembly passed, and the Governor then signed into law, the Appellate Jurisdiction Reform Act of 2016, Ga. L. 2016, p. 883, which gives the Court of Appeals subject matter jurisdiction over “[a]ll divorce and alimony cases” in which a notice of appeal or application to appeal is filed on or after January 1, 2017. Id. § 3-1 (codified at
We can now turn to Father‘s enumerations.
3. Father contends first that
(a) In 1977, this Court noted its concern about
the number of cases in which children are illegally seized or illegally detained at the end of visitation periods by their noncustodial parents, as well as those where a parent is personally served with a petition when he arrives to return his children home, as in this case. We believe that by denying these parents a convenient forum in which to relitigate custody, these practices may be reduced or stopped altogether. It is thus in the public interest to discourage such conduct without any prejudice whatsoever to the noncustodial parent‘s right to bring such a petition where the legal custodian, and the children, reside.
Matthews v. Matthews, 238 Ga. 201, 203 (232 SE2d 76) (1977). The following year, the General Assembly responded to this problem by enacting the Georgia Child Custody Intrastate Jurisdiction Act of 1978, Ga. L. 1978, p. 1957 (“CCIJA“), and Georgia‘s version of the Uniform Child Custody Jurisdiction Act, Ga.
(b) We first consider
Father relies on
Rather, the statute regulates how and where complaints to change custody (and visitation) may be pursued, and Mother did not file her modification action as a responsive pleading or counterclaim in Father‘s divorce contempt action. Instead, she did exactly what
Indeed, not long after the CCIJA was enacted, this Court encouraged parents to follow the course that Mother pursued in order to obtain a change of primary physical custody or visitation rights following efforts by the other parent to enforce the existing child custody order. See Hutto v. Hutto, 250 Ga. 116, 118 (296 SE2d 549) (1982) (explaining that a father with visitation rights who was prevented by what is now
enforcement action by the other parent is pending. Thus,
(c) We turn next to
In his brief to this Court, Father asserts that the trial court found that Mother had “withheld visitation,” referring to the court‘s February 12 and July 1, 2015 contempt orders. That is not true. In its February 12 contempt order, the trial court specifically declined to find that Mother violated the divorce decree with respect to Father‘s visitation with J. D. And in its July 1 contempt order, the court found that Mother violated the divorce decree by interfering with Father‘s visitation on a few occasions, not that she was withholding visitation from him altogether. Father‘s not receiving his full scheduled visitation on a particular occasion does not equate to a finding that Mother was affirmatively precluding him from visitation with J. D. Indeed, Mother testified at the June 4, 2015 hearing that she had never withheld visitation from Father and offered text messages from J. D. stating that Mother did not prevent any visits with Father, and the trial court was entitled to credit that evidence. Compare Avren v. Garten, 289 Ga. 186, 187 (710 SE2d 130) (2011). Thus, the
also did not err in declining to dismiss Mother‘s modification complaint pursuant to
4. Father claims that the trial court erred in modifying his visitation rights to require him to arrange visitation with J. D. at times that are mutually agreeable. In a dispute between two fit parents,
“[a] trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the children‘s best interest. A trial court‘s decision regarding a change in custody/visitation will be upheld on appeal unless it is shown that the court clearly abused its discretion. Where there is any evidence to support the trial court‘s ruling, a reviewing court cannot say there was an abuse of discretion.”
Coppedge v. Coppedge, 298 Ga. 494, 499 (783 SE2d 94) (2016) (citation and punctuation omitted).
Father first seeks to avoid this daunting standard of appellate review by demanding a do-over in the trial court, claiming that his due process rights were violated because “there was no trial on [Mother‘s complaint] for modification.” This claim is belied by the record. On June 4, 2015, the trial court held an evidentiary hearing on “everything” pending in both the modification and contempt cases, which included Mother‘s October 2014 complaint for modification of Father‘s visitation rights; the court had sent counsel for both parties an e-mail, listing both the modification and contempt case numbers, “to confirm that the final trial in both of these cases has been specially set for June 4, 2015,” and Father referenced the June 4 trial date in both his pre-hearing and post-hearing filings in the modification action. Moreover, at the hearing the parties presented not only evidence on the specific contempt claims that Father had raised but also extensive evidence on the need for modification of the existing parenting plan, including the testimony of both parties and voluminous written communications among Father, Mother, and J. D.
Turning to the merits of the modification ruling, Father contends that the trial court failed to consider whether modification was in J. D.‘s best interests and whether some remedy other than requiring Father to arrange visitation with his then-almost-16-year-old daughter at mutually convenient times would be more appropriate. In particular, Father points to his request for mandatory reunification therapy with J. D., but the court explained in its order that it “seriously considered” that request until “it became obvious to the Court that, given the level of J. D.‘s anger, this would likely be a waste of time and money and a source of more frustration.” Father disputes the trial court‘s factual findings and asserts — with no apparent basis other than his displeasure with the court‘s ruling — that “the court ignored evidence” in his favor that was presented at the hearing.
Father claims that the “court found [Mother] engaged in an incessant pattern of contemptuous interference with visitation even after the court told her to stop.” In reality, while recognizing that Mother is “not without fault,” the court found that the acts she had committed in contempt of the court‘s orders were done “in order to assist the child in navigating this difficult situation [with Father]” and that she “has been trying unsuccessfully to find ways to support a troubled child while at the same time avoiding contempt of the Court‘s Orders.” Father also repeatedly mischaracterizes the trial court‘s ruling that he must arrange his visitation with his now-17-year-old daughter at mutually convenient times as a “termination of [his] parenting time.” Instead, Father may actually spend more time with J. D. than he did under the previous plan — if he treats her with sufficient respect and kindness that she is willing to be with him and thereby alleviates what the court “sadly” found to be J. D.‘s “significant stress and emotional hardship resulting from the [previous] inconvenient visitation arrangement.” The record shows that the trial court did not seek to end J. D.‘s relationship with her father, but rather to rejuvenate it by modifying a visitation scheme that the court found J. D. perceived to be based on Father‘s “force and intimidation.”
Finally, while the trial court‘s order does not use the term “best interests of the child,”
5. Father contends that the trial court denied him due process in awarding Mother attorney fees in the July 6, 2015 order because the award was made under an inapplicable statute. The three-page order said in conclusion, “Pursuant to OCGA Sec. 19-6-2, the Court hereby awards fees to the Mother for this modification action in the amount of $46,593.05.” As Father correctly points out, this award was not proper under the statute cited, because
Thus, while the trial court erroneously cited
Father also asserts that his due process rights were violated because the award was made without a written motion, without a hearing, and without any supporting evidence. However, the record shows that Mother repeatedly asked the trial court in written filings for an order awarding her attorney fees under
party had an opportunity to respond before the order awarding fees was entered).
6. On July 7, 2016, more than two months after Father filed his initial brief on April 20, raising the enumerations of error addressed above, he filed a “Replacement Brief” attempting to raise three additional enumerations of error. Remarkably, Father filed this brief on the Thursday before the oral argument on Monday, July 11, and he did so despite this Court‘s entry of an order on July 5 denying the request he made earlier that day for permission to file a supplemental brief. This Court‘s rules require an appellant‘s brief to be filed within 20 days after the case is docketed, unless the Court grants an extension of time (which Father did not seek), and enumerations of error must be filed as a part of that brief. See Supreme Court Rules 10 and 19. See also
Judgment affirmed. All the Justices concur.
NAHMIAS, Justice.