THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 11, 2014
In the Court of Appeals of Georgia
A14A0609. MORGAN v. FORDHAM.
B OGGS, Judge.
Following the January 2005 divorce of Venus Morgan and David Fordham,
Morgan was awarded sole physical custody of the couples’ children and jointly shared
legal custody of the children with Fordham. In 2013, the trial court determined that it
was in the children’s best interest to give Fordham physical custody of the children, and
Morgan appeals.1 Because it appears from the trial court’s order that it modified
custody based upon an erroneous theory of law, we vacate the trial court’s order and
remand this case to the trial court for consideration of all factors required to modify
custody.
1
At time of the hearing, the children were 13 and 10.
On February 22, 2012, Fordham filed a petition for modification of custody in
which he alleged a substantial change in circumstances and specifically contended that
Morgan used corporal punishment inappropriately, had put the eldest minor child out
of the home on several occasions, and that Morgan’s new husband was incarcerated
and would be residing in the same home with the children upon his release. On
December 5, 2012, Fordham filed a motion for contempt and amended his custody
modification petition. Fordham complained that Morgan was in contempt of the divorce
decree in that she had willfully denied him visitation with his children, and also alleged
that Morgan had medically neglected the oldest child.
On April 22, 2013, the trial court held a hearing and afterward entered an order
stating that “[a]fter considering the evidence, including the guardian ad litem’s report,
and the law, this Court finds that it is in the best interest of the parties’ minor children
for Mr. Fordham to have sole physical custody.” The trial court also ordered Morgan
to pay child support, and further ordered that the children were not to visit Morgan’s
current husband in prison, or upon his release “be around this man at any time, unless
this Court modifies this provision in an order.” Nowhere in the trial court’s order,
however, does it refer to the legal requirement for material changes in conditions and
circumstances substantially affecting the interest and welfare of the child. See Todd v.
2
Casciano, 256 Ga. App. 631, 632-633 (1) (569 SE2d 566) (2002); OCGA § 19-9-3
(b). Nor does it make any factual findings regarding such material changes.
A petition to change child custody should be granted only if the trial court
finds that there has been a material change of condition affecting the
welfare of the child since the last custody award. If there has been such
a change, then the court should base its new custody decision on the best
interest of the child. If the record contains any reasonable evidence to
support the trial judge’s decision on a petition to change custody, it will
be affirmed on appeal. Although trial courts have wide discretion in
change of custody proceedings, that discretion is not without limits.
(Citations and footnotes omitted.) Durham v. Gipson, 261 Ga. App. 602, 605 (1) (583
SE2d 254) (2003).
Although Morgan complains on appeal2 that the trial court did not make any
factual findings supporting the change in custody, unless requested by either party, the
judge is not required to include factual findings in its order, and it does not appear that
2
We note that Morgan attached several exhibits to her appellate brief, including
a “Notarized Child Support Arrearage Statement.” But pursuant to Court of Appeals
Rule 24 (g), “[d]ocuments attached to an appellate brief, which have not been certified
by the clerk of the trial court as a part of the appellate record and forwarded to this
Court, shall not be considered on appeal.” As this document was not certified by the
clerk of the trial court as part of the appellate record, we can cannot consider it on
appeal. See Gateway Atlanta Apts. v. Harris, 290 Ga. App. 772 n.1 (660 SE2d 750)
(2008).
3
either Morgan or Fordham asked for such findings. See Weickert v. Weickert, 268 Ga.
App. 624, 629 (2) (602 SE2d 337) (2004); OCGA § 19-9-3 (a) (8) (“If requested by
any party on or before the close of evidence in a contested hearing, the permanent court
order awarding child custody shall set forth specific findings of fact as to the basis for
the judge’s decision in making an award of custody including any relevant factor relied
upon by the judge.”) Even in the absence of such a request, however, existing
precedent requires that we vacate the trial court’s order.
In Johnson v. Hubert, 175 Ga. App. 169 (333 SE2d 21) (1985), we addressed
a similar order and wrote:
In the case sub judice, as reflected in the trial court’s findings of fact and
conclusions of law, the trial court awarded custody of the child to the
plaintiff father solely upon the conclusion that it was in the “best interest
and welfare of the child” without first finding “a change in material
conditions or circumstances of the parties or the child, subsequent to the
original decree of divorce and award of custody.” Although the evidence
presented in the trial court may have been sufficient to support a change
of custody (of which we cannot make a determination in the absence of
a transcript), it appears that the trial court failed to apply the complete
correct legal standard in this case. Accordingly, we must reverse the
judgment in the case and remand to the trial court for proceedings
consistent with this opinion.
4
Id. at 170 (1). Likewise, though in a different factual context, this court vacated a trial
court’s order dismissing a plaintiff’s complaint based upon the doctrine of judicial
estoppel, because the trial court’s order did not list one of the factors that can be used
to apply the doctrine of judicial estoppel. Daniel v. Fulton County, 324 Ga. App. 865
(752 SE2d 1) (2013). W e explained that “[w]here, as here, it appears from the trial
court’s stated explanation for its ruling that it engaged in an incomplete exercise of
discretion based on an erroneous theory of law, the proper remedy from this court is
to remand the case to the trial court for its full consideration of the appropriate factors.
[Cits.]” Id. at 867.
The dissent in Daniel by the author of this opinion advocated against returning
a case to the trial court when the record fails to establish that the trial court
affirmatively ruled based upon an erroneous legal theory. Id. at 868-870 (1). While we
believe that the presumption of regularity should be applied to affirm an order that
merely fails to discuss a portion of an applicable legal standard, this view did not
prevail in Daniel. We therefore are bound to apply the majority’s decision in Daniel
to the case now before us.
We take this opportunity, however, to question once again the wisdom of this
court’s position that a trial court’s order should be vacated based upon what is not
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contained within the trial court’s order. This position fails to recognize this court’s
obligation to apply the presumption of regularity on appeal, discourages a trial court
from providing any explanation of its reasoning to the parties, and encourages the
issuance of boilerplate one-sentence orders.
Judgment vacated and case remanded with direction. Branch, J., concurs.
Barnes, P. J., concurs in judgment only.
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