BANKSTON v. WARBINGTON; And Vice Versa

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/

March 24, 2015

In the Court of Appeals of Georgia
A14A1514, A14A1515. BANKSTON v. WARBINGTON; and vice
versa.

BRANCH, Judge.

These companion appeals are the second and third arising from a custody

dispute that went to trial in September 2012. In October 2012, the trial court issued

an order modifying primary physical custody of the ten-year-old child at issue in

favor of the father as of January 2013, but also including a self-executing provision

that the mother would regain custody after 18 months (in the summer of 2014). In

November 2013, the trial court ruled on the mother’s post-trial motions and the

father’s request for attorney fees. On appeal in Case No. A14A1514, the mother

argues that the trial court abused its discretion when it modified custody in favor of

the father. On cross-appeal in Case No. A14A1515, the father argues that the trial
court erred when it ordered the self-executing change of custody in the summer of

2014, when it increased his child support obligation as of that time, and when it failed

to rule on the father’s request for fees first made shortly after trial. We affirm the

initial modification of custody as supported by the evidence, but we vacate those

portions of the order implementing a self-executing return of custody to the mother

and awarding child support and fees, and we remand for further proceedings

consistent with this opinion.

On appeal from a trial court’s determination in a custody dispute, we defer to

that court in all matters of fact:

When considering a dispute regarding the custody of a child, a trial
court has very broad discretion, looking always to the best interest of the
child. This Court will not interfere unless the evidence shows a clear
abuse of discretion, and where there is any evidence to support the trial
court’s finding, we will not find there was an abuse of discretion.

Williams v. Williams, 295 Ga. 113 (1) (757 SE2d 859) (2014) (citations and

punctuation omitted). “We are mindful that the Solomonic task of making [custody]

decisions lies squarely upon the shoulders of the judge who can see and hear the

parties and their witnesses, observe their demeanor and attitudes, and assess their

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credibility.” Smith v. Curtis, 316 Ga. App. 890, 892 (730 SE2d 604) (2012) (citations

and punctuation omitted).

Viewed in favor of the trial court’s judgment, the record shows that the child

at issue, a girl, was born on January 26, 2004. In a November 2004 consent order, the

parties agreed that the mother would have primary physical custody of the child. In

February 2006, after the mother moved out of Georgia, the father sought and obtained

more visitation time. On February 9, 2011, the father filed the instant petition for a

change in custody and child support, alleging inter alia that the mother had not

provided a stable environment for the child and had alienated the child from the

father.

In July 2011, the mother refused to pick up the daughter at Los Angeles

International Airport (LAX) at a scheduled custody transfer such that the daughter

was forced to return to Atlanta with her father before flying back to her mother in

California.1 On July 26, 2011, the mother filed an emergency motion for contempt

against the father as to the airport incident, which the trial court characterized as a

“honest disagreement” between the two parents. In April 2012, the trial court found

1
When the daughter told the mother over the phone from the airport that she
“thought [the mother] wanted to see [her],” the mother replied that she was not
coming.

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that the mother and her counsel had thus “unnecessarily expanded the proceeding by

improper conduct,” including the filing and defense of pleadings and motions “that

lacked substantial justification or [were] interposed for delay or harassment,” and

awarded the father $4,300.00 in attorney fees and expenses. In the case’s first

appearance on appeal, we affirmed the trial court’s authority to award the father

attorney fees, reversed the award of the father’s air expenses as not authorized by

OCGA § 9-15-14 (b), and remanded for further proceedings as to the proper amount

of the fee award. Bankston v. Warbington, 319 Ga. App. 821, 822-823 (2) (738 SE2d

656) (2013).

At the September 2012 trial on the father’s petition to change custody, the trial

court heard testimony from witnesses, including the child’s guardian ad litem, that the

mother had moved four or more times after leaving Georgia, each requiring a change

in schooling arrangements and one occurring during the daughter’s summer visitation

with her father, and that the mother had failed to give the father sufficient notice of

these relocations. Evidence at the hearing described the July 2011 mishap at LAX and

showed that the mother discouraged the daughter from making friends in her

neighborhood, deprived the father of meaningful telephone or teleconferencing

contact, and disrupted therapy sessions by discouraging the daughter from

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acknowledging her father and not allowing the daughter to speak for herself.

Evidence also showed that the mother’s disdain for the father was damaging the

daughter’s relationship with him. On October 11, 2012, and citing OCGA § 19-9-3

(a) (3) (N),2 the trial court held that because “the only antidote to the alienating

behaviors of the [m]other is to allow the child to be immersed in the [f]ather’s

[household] for a period of time,” it was “in the best interest of the child to award

primary physical custody of the child to the [f]ather for a period of 18 months, to

commence at the end of her scheduled winter vacation time with the [m]other in

2012,” until one week before the start of the child’s 2014-2015 school year, when the

mother would regain primary physical custody. The trial court also awarded child

support from the mother to the father for the period of his primary custodianship and

from the father to the mother “commenc[ing] September 1, 2014,” and reserved the

issue of fees.

In the weeks following the entry of this October 2012 judgment, the mother

filed at least six different motions, none of which she designated for inclusion in the

2
OCGA § 19-9-3 (a) (3) provides that a trial court considering the best
interests of a child in a custody matter “may consider any relevant factor including,
but not limited to . . . (N) [t]he willingness and ability of each of the parents to
facilitate and encourage a close and continuing parent-child relationship between the
child and the other parent, consistent with the best interest of the child[.]”

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appellate record: a motion for new trial; motions for reconsideration of three of the

trial court’s orders, including its final judgment, on the basis in part of “newly

discovered evidence” as to the father’s drinking alcohol “at various local bars and

restaurants”; a motion to provide the child with “a Healthy Allergy Free

Environment”; a motion for entry of an order regarding reimbursement of medical

expenses; and a motion to correct a child support worksheet. After a hearing, the trial

court denied the motion for new trial, noting as it did so that the mother had

withdrawn her motion for reconsideration based on newly discovered evidence.

On January 24, 2013, the mother, who had retained new counsel Lisa West,

moved to recuse the judge presiding over the case on the ground that the judge had

previously recused herself from cases in which West was involved. On February 7,

2013, the judge granted the mother’s motion to recuse, but noted the court’s “grave[]

concern[ ] at the prospect of creating a situation in which any litigant before it who

has been disappointed with an interim decision can try their luck with another [j]udge

simply by retaining Ms. West.” On October 4, 2013, the mother again moved for

contempt against the father on grounds including that the father had refused to allow

the mother to have lunch alone with the child.

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 A hearing on all pending post-trial matters was held on October 14, 2013. On

November 1, the trial court found that a number of the mother’s filings, including the

October 2013 contempt motion, had been “frivolous and vexatious” and awarded the

father $9,362.50 in attorney fees. After the docketing of this appeal and its cross-

appeal in this Court, the father moved this Court for emergency supersedeas on the

grounds that the trial court erred when it issued the self-executing provision returning

custody to the mother in the summer of 2014. We granted the father’s emergency

motion and ordered the parties and the trial court not to observe the self-executing

change-of-custody provision pending our final disposition of these appeals.

Case No. A14A1514

1. On the first appeal, the mother argues that the trial court abused its discretion

when it modified custody in favor of the father as of January 2013. We disagree.

“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.” Lynch v.

Horton, 302 Ga. App. 597, 600 (4) (692 SE2d 34) (2010) (punctuation and citation

omitted); see also OCGA § 19-9-3 (b) (trial court may modify custody “based upon

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a showing of a change in any material conditions or circumstances of a party or the

child”); Weickert v. Weickert, 268 Ga. App. 624, 627 (1) (602 SE2d 337) (2004) (trial

court is not required to find a material change for the worse in order to modify

custody). A determination that there has been a material change in condition

supporting a modification of custody will be affirmed absent an abuse of discretion,

and “[w]here there is any evidence to support the trial court’s ruling, a reviewing

court cannot say there was an abuse of discretion.” Vines v. Vines, 292 Ga. 550, 552

(2) (739 SE2d 374) (2013) (affirming trial court’s denial of motion to modify

visitation rights as supported by some evidence).

The mother argues that the trial court’s finding regarding the best interests of

the child under OCGA § 19-9-3 (a) (3) (N) as to the mother’s unwillingness “to

facilitate and encourage a close and continuing parent-child relationship” between the

child and the father resulted in an erroneous disregard of other factors also included

in OCGA § 19-9-3 (a) (3). This contention misreads the statute.

OCGA § 19-9-3 (a) (2) provides that a judge considering a custody issue “may

take into consideration all the circumstances of the case . . . in determining to whom

custody of the child should be awarded,” and that “[t]he duty of the judge . . . shall

be to exercise discretion to look to and determine solely what is for the best interest

8
of the child and what will best promote the child’s welfare and happiness and to make

his or her award accordingly.” (Emphasis supplied.) Consistent with this direction

that the trial court’s consideration of relevant evidence be discretionary, OCGA § 19-

9-3 (a) (3) specifies that “[i]n determining the best interests of the child, the judge

may consider any relevant factor including, but not limited to” a list of seventeen

factors, including subsection (a) (3) (N) — “[t]he willingness and ability of each of

the parents to facilitate and encourage a close and continuing parent-child

relationship between the child and the other parent, consistent with the best interest

of the child.” (Emphasis supplied.) On its face, then, OCGA § 19-9-3 (a) authorizes

a trial court to do what this court did — that is, to engage in a discretionary weighing

of evidence as to any relevant factor listed in subsection (3) before reaching a final

determination as to custody.

It is equally plain that the evidence at the hearing supported the trial court’s

determination that custody was properly modified, at least as of January 2013, in

favor of the father. In Viskup v. Viskup, 291 Ga. 103 (727 SE2d 97) (2012), the

Supreme Court of Georgia affirmed a trial court’s transfer of primary physical

custody from a father to a mother when the mother’s circumstances had improved

since the parties’ divorce and the father had been held in contempt for violation of a

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visitation order and had taken steps to undermine the mother, including sending

misleading letters to federal and state officials. Id. at 105 (2). The Court held that

“[s]ince there is evidence to support the trial court’s award of custody of the child to

one fit parent over the other fit parent, we cannot say the trial court abused its

discretion” in ordering the change in custody. Id. (citation omitted).

Here, likewise, the record before the trial court included evidence and findings

that although both parties were capable of providing for the child, the mother had

sufficiently undermined the child’s relationship with the father to justify a

modification of primary physical custody in favor of the father for at least 18 months

as “in the best interest of the child.” Because this determination was supported by

some evidence, we cannot say that the trial court abused its discretion when it made

this modification of custody. Viskup, 291 Ga. at 105 (2); Vines, 292 Ga. at 552 (2);

compare Cousens v. Pittman, 266 Ga. App. 387 (597 SE2d 486) (2004) (reversing

trial court’s modification from sole custody of a child in the mother to joint custody

with the father when “no factual support was given” for the court’s finding that a

material change of circumstances had occurred).

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 Case No. A14A1515

On cross-appeal, the father asserts that the trial court erred when it (1) included

the self-executing change of custody to take effect in the summer of 2014 in its

October 2012 order, (2) increased the father’s child support obligations as of the date

of self-executing change of custody, and (3) failed to address the father’s request for

attorney fees and for reapportionment of the guardian ad litem’s fees.

2. We first address the father’s assertion that the trial court erred when it

included a self-executing change of custody in favor of the mother effective 18

months after its award of primary physical custody to the father, which took effect in

January 2013.

In Scott v. Scott, 276 Ga. 372, 377 (578 SE2d 876) (2003), the Supreme Court

of Georgia held that a self-executing change of custody designed to take effect on a

“triggering event” such as remarriage or relocation violates OCGA § 19-9-3 (a) (2),

which requires that a trial court exercise its discretion concerning a change in custody

in light of the child’s best interests as evaulated at the time of the proposed change.

Id. at 375-377 (footnote omitted); see also Wrightson v. Wrightson, 266 Ga. 493, 496

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(3) (467 SE2d 578) (1996).3 Provisions that do not take account of the best interests

of the child at the time of a triggering event “are utterly devoid of the flexibility

necessary to adapt to the unique variables that arise in every case, variables that must

be assessed in order to determine what serves the best interests and welfare of a

child.” Scott, 276 Ga. at 375. Thus “self-executing change of custody provisions are

not rendered valid merely because the initial award of custody may have been based

upon the child’s best interests.” Id. at 376. Rather, “the factual situation at the time

the custody modification is sought” should determine “whether a change of custody

is warranted.” Id. (citations and footnote omitted).

As the mother herself conceded below, the self-executing change in custody

included in the trial court’s October 2012 order failed to provide for “a determination

whether the custody change is in the best interest of the [child] at the time the change

would automatically occur[.]” Scott, 276 Ga. at 377. As such, it “violates [this State’s]

public policy as expressed in OCGA § 19-9-3” that a trial court take into account “the

3
A self-executing change of custody might be justified when, absent any
finding that either parent is unfit, a child 14 years or older exercises his or her right
under OCGA § 19-9-3 (a) (5) to choose which parent to live with. Weaver v. Jones,
260 Ga. 493, 493 (3) (396 SE2d 890) (1990), citing Pearce v. Pearce, 244 Ga. 69
(257 SE2d 904) (1979). Neither parent has argued that the child at issue is of
sufficient age to activate this exception.

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factual situation at the time the custody modification is sought,” with the court’s

“paramount concern” always remaining “the best interests and welfare of the minor

child.” Id. at 375-377. We therefore vacate that portion of the trial court’s order

automatically returning custody to the mother and remand for further proceedings,

including an evidentiary hearing, on the question whether and for how long primary

physical custody should remain with the father. Id. at 377 (reversing denial of party’s

motion to strike self-executing change in custody provision from parties’ divorce

decree); see also Lynch, 302 Ga. App. at 600 (4) (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”) (citations

omitted).

3. Given our vacatur of the self-executing change in custody, we must also

vacate the award of child support payments from the father to the mother ordered to

take effect at the same time as that change of custody (in the summer of 2014). The

question of child support payments necessarily awaits the further proceedings ordered

above as to custody. See, e.g., OCGA § 19-6-15 (b) (7) (trial court “shall” determine

“the amount of child support for the custodial parent and the noncustodial parent

resulting in a monthly sum certain payment due to the custodial parent”); Green v.

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Krebs, 245 Ga. App. 756, 760 (3) (538 SE2d 832) (2000) (remanding child support

award for reconsideration in light of appellate court’s reversal of original award).

4. The father also argues that the trial court erred when it failed to address his

claim for attorney fees and costs, including those accumulated before and through the

trial held in September 2012. We agree.

The record shows that on October 19, 2012, the father submitted a letter brief

detailing his claim for fees and guardian ad litem costs incurred before and through

the trial held in September 2012. See OCGA § 9-15-14 (e) (fees “may be requested

by motion at any time during the course of the action but not later than 45 days after

the final disposition of the action”). The first judge assigned to the case recused

herself in February 2013 before ruling on this motion. On September 23, 2013, the

father again moved for fees and costs under OCGA §§ 19-9-3 and 9-15-14, referring

as he did so to the letter brief of October 2012. This motion asked for an award of a

“reasonable portion” of the $46,892.62 spent in fees and costs before entry of the

court’s final judgment of October 2012 as well as those incurred since that judgment.

After the post-trial hearing held on October 14, 2013, the trial court awarded the

father attorney fees in the amount of $9,362.50, but limited its discussion of the

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mother’s “frivolous and vexatious” pleadings and motions to those taking place on

or after October 31, 2012 — that is, some weeks after trial.

OCGA § 19-9-3 (g) provides in relevant part:

Except as provided in Code Section 19-6-2 [concerning alimony and
divorce proceedings], and in addition to the attorney’s fee provisions
contained in Code Section 19-6-15 [concerning child support payment
awards], the judge may order reasonable attorney’s fees and expenses
of litigation, experts, and the child’s guardian ad litem and other costs
of the child custody action and pretrial proceedings to be paid by the
parties in proportions and at times determined by the judge. Attorney’s
fees may be awarded at both the temporary hearing and the final hearing.

(Emphasis supplied.) On its face, this statute authorizes a trial court to award a party

to a custody action both “reasonable attorney’s fees and expenses of litigation,”

including a child’s guardian ad litem costs, and contemplates that such an award

could include fees and costs incurred in the course of “pretrial proceedings.”

Likewise, OCGA § 9-15-14 (b) authorizes the recovery of

reasonable and necessary attorney’s fees and expenses of litigation in
any civil action in any court of record if, upon the motion of any party
or the court itself, it finds that an attorney or party brought or defended
an action, or any part thereof, that lacked substantial justification or that
the action, or any part thereof, was interposed for delay or harassment,
or if it finds that an attorney or party unnecessarily expanded the

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 proceeding by other improper conduct . . . . As used in this Code section,
“lacked substantial justification” means substantially frivolous,
substantially groundless, or substantially vexatious.

(Emphasis supplied.)

The trial court’s order of November 1, 2013, held that a number of the mother’s

post-trial motions were “frivolous and vexatious,” but did not mention or rule on the

father’s longstanding request for fees and costs incurred up to and including trial. The

trial court was authorized to award such fees and costs, which were requested in

writing well before the October 2013 post-trial hearing, and erred to the extent that

it failed to consider the father’s request as to them. We therefore vacate the trial

court’s order of November 1, 2013, and remand for further proceedings consistent

with this opinion, including an evidentiary hearing on the father’s request for

reasonable fees and costs incurred up to and including trial. See Unifund CCR

Partners v. Mehrlander, 309 Ga. App. 685, 687-688 (710 SE2d 882) (2011) (vacating

an award of fees made under OCGA § 9-15-14 and remanding with direction to “(1)

reconsider the award of attorney fees and litigation expenses, (2) provide, if

necessary, an explanation of the statutory basis or bases for any award given under

OCGA § 9-15-14 (a) and/or (b), as well as any findings of facts and conclusions of

16
law necessary to support such an award, and (3) enter a new judgment from which the

losing party may appeal”) (footnote omitted).

Judgments affirmed in part and vacated in part, and case remanded with

direction. Barnes, P. J., and Boggs, J., concur.

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