In the Supreme Court of Georgia
Decided: May 23, 2016
S16A0534 AMOAKUH v. ISSAKA.
HINES, Presiding Justice.
Eddie Amoakuh (“Father”) appeals pursuant to OCGA § 5-6-34 (a) (11)
from the trial court’s orders finding him in contempt, modifying child custody
and child support, and awarding attorney’s fees. For the reasons that follow, we
affirm in part, vacate in part, and remand the case to the trial court for further
proceedings.
Father and Mariama Issaka (“Mother”) were divorced in May 2010; at that
time they had three minor children. Under a 2012 court order modifying the
prior child custody arrangement, the two children who were still minors moved
to the United Kingdom with Mother, who became their primary physical
custodian; Father was granted visitation during the summer months, and at any
time he was in the United Kingdom, or in the place of “Mother’s residence.”
Father’s child support obligation was set at $150 per month.
In 2014, Mother had become a resident of Ghana; one child was still a
minor, and a dispute arose over the logistics regarding the exercise of Father’s
summer visitation with that child. Father traveled from Ghana to the United
States with the child, and entered her in school in Georgia. Mother filed a
petition for a finding that Father was in contempt of the 2012 order, and
requested that custody of the minor child be modified so that she be sole
custodian, and that child support be modified accordingly; Father
counterclaimed, seeking a finding that Mother was in contempt of the 2012
order, and a modification of custody to name him the primary physical custodian
of the child. After a hearing, the trial court granted Mother’s petition and denied
Father’s requested relief; the court found Father to be in contempt of the 2012
order, and Mother was awarded sole legal and physical custody of the child.
The court ruled that Father would have no access to the child’s passport and
would have the same amount of visitation with the child as under the prior order,
but would exercise that visitation in whatever country the child was residing.
Father’s child support obligation was also raised to $381.00 per month, and
Mother was awarded $3,258.47 in attorney’s fees and expenses.
1. Father contends that the trial court erred in modifying custody of the
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child.
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. . . . The evidence
sufficient to warrant a modification of custody can consist of a
change in material conditions which have a positive effect on the
child’s welfare as well as changes which adversely affect the child.
[Cits.] A trial court faced with a petition for modification of child
custody is charged with exercising its discretion to determine what
is in the child's best interest. [Cits.]
Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). There was
evidence that Father refused to return the child to Mother after he exercised
summer visitation in 2014, prevented the child from communicating with
Mother, and enrolled the child in school without Mother’s knowledge or
consent; the court found that this behavior had caused the child to fear that she
would not be returned to Mother. Although Father emphasizes other evidence
in the record, the trial court’s determination that there had been a material
change of conditions is supported by the record, and there is no abuse of the trial
court’s discretion in concluding that the best interests of the child were served
by the new custody arrangement. Id. Contrary to Father’s contention, the fact
that Mother has moved to Ghana does not indicate that the trial court abused its
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discretion, nor do the new custody and visitation provisions terminate his
parental rights. See Taylor v. Taylor, 282 Ga. 113 (fn. 1) (646 SE2d 238)
(2007).
2. Father also contends that the trial court erred in finding him to be in
contempt of the 2012 order, as well as in failing to find Mother in contempt of
that order. Trial courts have “broad discretion to determine if a party is in
contempt of its order, and the exercise of that discretion will not be reversed on
appeal unless grossly abused.” Baker v. Schrimsher, 291 Ga. 489, 491 (731
SE2d 646) (2012) (Citations omitted.) Father admits he failed to timely pay all
child support, but asserts that his failure to do so was not willful, and that he had
no opportunity to pay Mother the amount he was in arrears as to child support
until the end of the first day of trial. However, the record amply supports the
trial court’s conclusion that Father had access to sufficient funds, could have
paid the amount due “weeks” earlier than he did, and that his failure to pay child
support was “flagrant and willful.” Similarly, the evidence supports the trial
court’s conclusion that Father was in contempt for willfully keeping the child
with him after the expiration of his 2014 summer visitation period.
In his counterclaim, Father asserted that Mother should be held in
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contempt of the 2012 order for failing to provide him with the child’s passport,
and asserts that the trial court erred in failing to find Mother in contempt in that,
and other respects. However, the trial court specifically credited Mother’s
testimony regarding efforts to renew the child’s passport, and Father fails to
show any abuse of the trial court’s discretion in
failing to hold her in contempt. See Hammond v. Hammond, 282 Ga. 456, 457
(2) (651 SE2d 95) (2007).
3. The trial court awarded attorney’s fees and expenses in connection with
the contempt portion of the proceedings. Father contends, inter alia, that the
trial court’s order fails to meet the requirements of OCGA § 9-15-14. However,
the court’s order is not premised on OCGA § 9-15-14, but specifically states
that the award of attorney’s fees is made pursuant to OCGA § 19-6-2, for fees
and expenses in connection with the contempt portion of the case. Accordingly,
there is no merit to Father’s assertions of error under OCGA § 9-15-14.
Nonetheless, Father asserts that, judged under the requirements of OCGA
§ 19-6-2, the award of attorney’s fees is improper because the trial court did not
take into account the financial circumstances of the parties. This is correct. In
its order finding Father to be in contempt, the trial court requested that Mother
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show to the court what portion of the attorney’s fees she had requested pertained
to the contempt proceedings, which she did. However, in issuing its final order
on attorney’s fees in connection with the contempt proceedings, the court did
not make findings of fact regarding the relative financial circumstances of each
party, or otherwise cause the record to show that such had been properly
considered. See McCarthy v. Ashment-McCarthey, 295 Ga. 231, 233-234 (758
SE2d 306) (2014); Leggette v. Leggette, 284 Ga. 432, 433 (2) (668 SE2d 251)
(2008). Compare Hoard v. Beveridge, ___ Ga. ___, ___ (2) (783 SE2d 629)
(2016); Simmons v. Simmons, 288 Ga. 670, 673-674 (6) (706 SE2d 456) (2011).
Accordingly, the award of attorney’s fees in connection with the contempt
proceedings must be vacated, and the case must be remanded to the trial court
for reconsideration of this issue. McCarthy, supra.
Judgment affirmed in part and vacated in part, and case remanded with
direction. All the Justices concur.
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