Dallow v. DallowDallow v. Dallow
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.
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 agreed to “exchange the children at school when possible,” but “[i]f the children are not in school or exchange at school is not practicable,” Father was ordered to “pick up the children from [Mother and] ... drop the children off with [Mother] at the end of his . . . visitation period.” Under the heading “Other
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
(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 complaint alleged that J. D. was never consulted before the divorce about her wishes concerning visitation, that she found the split-week arrangement to which the parties had agreed highly objectionable during the school year, and that the inconvenient arrangement had caused her significant stress and emotional hardship and had significantly damaged her quality of life. The complaint requested that the parenting plan be modified so that J. D. would be required to visit Father only on days and times that are mutually agreeable to both of them.
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.
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 impacts 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.
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
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 efforts to alienate him from J. D. The parties agreed at the hearing to present closing arguments and motions for attorney fees by briefs, which the parties then filed on June 15. On July 1, 2015, the trial court entered an order granting Mother‘s complaint for modification of visitation; on July 6, the court entered an order awarding Mother $46,593.05 in attorney fees; and on July 7, the court entered an order denying Father‘s motion to dismiss Mother‘s complaint.1
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
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 inquire into its jurisdiction in any case in which there may be a doubt about the existence of such jurisdiction.‘” (citation omitted)). Under the current scheme of appellate court jurisdiction, this Court has subject matter jurisdiction over appeals in “[a]ll divorce and alimony cases.”
However, an award of attorney fees under
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. L. 1978, p. 258 (“UCCJA“). See Sweeney v. Sweeney, 241 Ga. 372, 374-375 (245 SE2d 648) (1978)
(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
(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).9 Thus, the trial court
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 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.”
Ample evidence supported the court‘s modification of Father‘s visitation rights to change his time with J. D. to mutually agreed dates and times. See Andersen v. Farrington, 291 Ga. 775, 777 (731 SE2d 351) (2012) (recognizing the discretion of a trial court to “impose reasonable restrictions upon visitation as the circumstances may require,” including preconditions to exercising visitation). Indeed, the modified visitation arrangement as to J. D. is the same “mutually agreeable” times arrangement to which Father agreed in the original parenting plan as to her brother Eric when he was about J. D.‘s current age. See Doritis v. Doritis, 294 Ga. 421, 425 (754 SE2d 53) (2014) (upholding a trial court‘s exercise of discretion in determining that compelled counseling or visitation with a father would not be in the best interests of his 17-year-old 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
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.
Notes
(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.
(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.
(c) No complaint specified in subsection (a) or (b) of this Code section shall be made:
(1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or
(2) In response to any other action or motion seeking to enforce a child custody order.
(d) The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited.
(a) A physical custodian shall not be allowed to maintain against the legal custodian any action for divorce, alimony, child custody, change of alimony, change of child custody, or change of visitation rights or any application for contempt of court so long as custody of the child is withheld from the legal custodian in violation of the custody order.
(b) A legal custodian shall not be allowed to maintain any action for divorce, alimony, child custody, change of alimony, change of child custody, or change of visitation rights or any application for contempt of court so long as visitation rights are withheld in violation of the custody order.