FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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 13, 2015
In the Court of Appeals of Georgia
A15A0534. JEWELL v. McGINNIS et al.
RAY, Judge.
Lindsey Jewell appeals from a final order entered by the superior court
awarding joint legal custody of her daughter, C. M., to Jewell and to the child’s
paternal grandparents, Stephen and Diane McGinnis, with primary physical custody
to the grandparents. The mother asserts, inter alia, that the trial court erred in failing
to produce findings of fact and conclusions of law in its order awarding custody, that
it failed to incorporate a permanent parenting plan into its final custody decision, that
it improperly consolidated two separate cases, and that it considered inadmissible
evidence when coming to its conclusion. For the following reasons, we vacate and
remand the case with direction.
The facts are as follows. The mother and father divorced on April 29, 2013.
The divorce and custody agreement awarded joint legal custody of C. M. to the father
and mother. The father was granted physical custody, and the mother was granted
visitation rights.
On April 24, 2014, the mother filed a complaint in the Superior Court of
Newton County against the father seeking a temporary and permanent modification
of the primary physical custody of C. M. due to the father’s incarceration (the “Parent
Custody action”).1 On the same day, the paternal grandparents filed an emergency
motion for custody (the “Third-Party Custody action”). An emergency hearing was
held on April 24, 2014, at which the trial court required the attendance of the paternal
grandparents and the mother. Although the mother was not served with the Third-
Party Custody action until June, 2, 2014, there is nothing in the record to indicate that
the mother objected to proceeding with both actions at the temporary hearing. At the
conclusion of the hearing, the trial court entered an emergency order of custody,
granting temporary custody of C. M. to the paternal grandparents until the end of the
1
By his failure to respond to the mother’s request for admissions in the Parent
Custody action, the father admitted that he was arrested on April 21, 2014, on a
felony warrant for child molestation relating to multiple incidents of child molestation
alleged to have been committed on M. T., the mother’s child from a previous
relationship.
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school year, with custody alternating between the mother and the grandparents on a
weekly basis thereafter. The father was barred from contact with the child.
On June 2, 2014, the mother and the paternal grandparents appeared for a
temporary hearing in the Third-Party Custody action. The trial court entered a
temporary order in the Third-Party Custody action which continued the same
custodial arrangement set forth after the emergency motion hearing in the Parent
Custody Action. The order further stated that it was joining the Parental Custody
action and the Third-Party Custody action together under one action.
The mother and the paternal grandparents appeared on July 14, 2014, for a final
hearing. At the hearing, the mother’s counsel stated that the cases had not been
properly merged and that no motion for intervention had been filed. In response, the
trial court initially stated that it was merging the two cases “on its own motion” for
the purposes of judicial economy. However, when the issue of proper venue was
raised, the trial court reconsidered the merger and instead granted the paternal
grandparents’ motion to intervene in the Parent Custody action. The mother did not
object. After the hearing, the trial court issued a final order granting joint legal
custody of the child to the mother and the paternal grandparents, with primary
physical custody to the paternal grandparents. The mother appeals from this order.
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1. The mother contends that the trial court erred by improperly consolidating
the Parental Custody case and the Third-Party Custody case. However, although the
mother’s counsel brought to the trial court’s attention that the cases had not been
properly consolidated, counsel did not object once the trial court orally consolidated
them “on its own motion” or when it later retracted that ruling and allowed the
paternal grandparents to intervene in the Parent Custody Action. Accordingly, this
enumeration has been waived. See Beloate v. Peden, 328 Ga. App. 64, 68 (2) (761
SE2d 487) (2014).
2. The mother asserts that the trial court’s decision was in error because it
appears that the trial court improperly considered evidence presented during the
emergency motion hearing in making its final custody decision. We disagree.
Although it is unclear what evidence the trial court utilized to make its decision
because the final order contains no findings of fact or conclusions of law, the hearing
transcript indicates that the trial court considered evidence presented at the temporary
custody hearing. At the final hearing, prior to the call of the paternal grandparents’
first witness, the trial court stated that the witness “has already testified. What is she
going to testify to that is different from what she testified before? . . . [She] testified
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at the temporary hearing, and if she is just going to reiterate that, there is no need for
that.”
In Pace v. Pace, 287 Ga. 899, 901 (700 SE2d 571) (2010), our Supreme Court
held that “absent express notice to the parties, it is error for a trial court to rely on
evidence from the temporary hearing in making its final custody determination.” This
is because “the nature and quality of the evidence presented at a temporary hearing
is likely to be different than that which is ultimately presented at the final hearing[.]”
Id. Yet, we find that the trial court’s indication to the parties that the witness need not
testify at the trial if her testimony was going to be redundant unmistakenly notified
the parties that he might rely on the witness’ prior testimony.2 Thus, the requirements
of Pace were met.
3. Citing OCGA § 19-7-1 (b.1), the mother argues that the award of primary
physical custody to the grandparents was in error because the trial court failed to
make findings, by clear and convincing evidence, that custody with her would be
harmful to the child and that custody with the grandparents best promoted the
children’s welfare and happiness. We agree.
2
We note that neither party lodged any objection to the court’s indication that
he did not need the witness to testify again as to matters which she had already
testified to in the interlocutory hearing.
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OCGA § 19-7-1 (b.1) provides, in pertinent part, that
in any action involving the custody of a child between the parents or
either parent and a third party [including] grandparent[s] . . . parental
power may be lost by the parent . . . if the court hearing the issue of
custody, in the exercise of its sound discretion and taking into
consideration all the circumstances of the case, determines that an award
of custody to such third party is for the best interest of the child or
children and will best promote their welfare and happiness. There shall
be a rebuttable presumption that it is in the best interest of the child ...
for custody to be awarded to the parent . . . , but this presumption may
be overcome by a showing that an award of custody to such third party
is in the best interest of the child. . . . The sole issue for determination
in any such case shall be what is in the best interest of the child. . . .
In order to satisfy the “best interest of the child” standard under OCGA § 19-7-1
(b.1), the third party must show by clear and convincing evidence:
(1) that parental custody would harm the child physically or emotionally
(not socially or economically), this to rebut the statutory presumption in
favor of the parent; and, upon meeting its initial burden, the third party
must show (2) that an award of custody to him or her will best promote
the child’s health, welfare and happiness.
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(Citation, punctuation, and footnote omitted.) Jones v. Burks, 267 Ga. App. 390, 392
(599 SE2d 322) (2004). See also Clark v. Wade, 273 Ga. 587, 589-593 (II) (544 SE2d
99) (2001) (construing the best interest standard).
The complained-of order awards primary physical custody of the child to the
paternal grandparents without making any findings of fact or law to support its award
. The award does not specify that the custody award is in the best interest of the child
under OCGA § 19-7-1 (b.1), and it does not state that its findings were made under
the required clear and convincing evidence standard. See Clark, supra at 599 (V). The
transcript of the hearing reveals that the trial court did not make any such findings
orally at the time of the hearing. Accordingly, we vacate and remand the case for the
trial court to make these findings under the required standard.
4. The mother also correctly asserts, and the grandparents concede, that the trial
court failed to incorporate a permanent parenting plan pursuant to OCGA § 19-9-1.
OCGA § 19-9-1 (a) provides, in pertinent part, that “[t]he final decree in any legal
action involving the custody of a child . . . shall incorporate a permanent parenting
plan.” Accordingly, upon remand, we also direct the trial court to comply with the
requirements of OCGA § 19-9-1.
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5. As a result of our holdings in Divisions 1-4, we need not address the
mother’s remaining arguments.
Judgment vacated and case remanded with direction. Barnes, P. J., and
McMillian, J., concur.
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